Texas Challenges EEOC’s New Bostock Guidance

In July 2021, the Equal Employment Opportunity Commission (EEOC) released FAQ guidance and a landing page as resources to employers in response to the U.S. Supreme Court’s decision in Bostock v. Clayton County, Georgia, 140 S. Ct. 1731 (2020).  Bostock was the 2020 Supreme Court decision that recognized that Title VII of the Civil Rights Act of 1964’s prohibition on employment discrimination based on sex includes a categorical bar on discrimination based on an individual’s sexual orientation and/or gender identity.  

Despite the opinion having been released in June 2020, the release of the EEOC’s guidance was delayed until June 2021. Having now received guidance, it seemed the issue was put to rest.  However, Texas Attorney General Ken Paxton has a different view.

On September 20, 2021, Ken Paxton filed suit on behalf of the State of Texas against the EEOC, Charlotte E. Borrows as Chairman of the EEOC and Merrick B. Garland as the Attorney General of the United States in the United States District Court for The Northern District of Texas, Amarillo Division, Case No.: Case 2:21-cv-00194-Z.  In summary, Attorney General Paxton claims the EEOC reached beyond the scope of the Bostock decision in issuing its guidance.  In particular, the State of Texas is concerned with state’s sovereignty as it relates to the administration of bathroom regulations.  As the Texas AG’s office stated in a press release:

This unlawful guidance increases the scope of liability for all employers, including the State of Texas in its capacity as an employer. Under our system, States have the sovereign right to enact their own policies regarding things such as bathroom usage, and this is an extreme federal overreach by the federal government

Texas’s lawsuit claims the EEOC has violated the state’s First Amendment rights, overstepped the Administrative Procedures Act as it failed to provide technical assistance and failed in a number of ways to follow established rulemaking procedures (i.e. notice and comment), and includes numerous other general allegations throughout its nine counts.  As remedies, Texas seeks declaratory relief to declare the guidance invalid and an order enjoining the EEOC from enforcing its recent guidance.

In total, Texas’s lawsuit provides a creative way to attack this administrative law regulation, and it will be interesting to see how it is adjudicated.  While any decision from the Northern District of Texas will not be binding on other trial courts, the issues, one-way-or-another, are ripe for review by the Court of Appeals for the Fifth Circuit.  Time will tell if this insulated area of administrative law makes its was back to the United States Supreme Court.

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