A Texas federal court judge just ruled that the Equal Employment Opportunity Commission’s (EEOC) June 2021 Guidance that permits exceptions for LGBT employees from certain policies on bathrooms, dress codes and locker rooms was unlawful.
In Texas v. EEOC, et al., 2:21-CV-194-Z (N.D. Tex. Oct. 1, 2022), District Court Judge Matthew Kacsmaryk, a Trump appointee, found that the EEOC’s Guidance had improperly interpreted the scope of the Supreme Court’s 2020 decision Bostock v. Clayton County decision which held that Title VII’s prohibition against sex discrimination includes and prohibits job discrimination based on sexual orientation and gender identity. Per the court, the Supreme Court established an employer cannot discriminate against an employee for their sexuality or gender identity but that does not translate to protecting “correlated conduct.” In the Guidance, the EEOC states that
An agency guidance document sets forth that agency’s interpretation of a court decision and does not have the force of law. This case, along with a July 2022 decision by a federal district court in the Eastern District of Tennessee, both determined that the EEOC got ahead of itself by interpreting the Bostock decision to protect LGBT employees’ correlated conduct, such as using facilities and pronouns that do not correspond to the employee’s gender assigned at birth.
While these cases do not decide the issue with finality because there is much to still be sorted regarding the scope and obligations an employer has since Bostock, employers should be mindful to continue consulting with employment counsel regarding facilities access and other similar issues that are very closely related to an employee’s gender identity.