Court Blocks Guidance on Sex & Transgender Bias

Recently, the U.S. District Court for the Eastern District of Tennessee (District Court) blocked the U.S. Equal Employment Opportunity Commission (EEOC) from enforcing its guidance covering sexual orientation and transgender discrimination. Initially, the EEOC’s guidance was meant to clarify and provide instructions for implementing anti-discriminatory workplace policies in-line with Title VII of the Civil Rights Act of 1964 (Title VII) and the U.S. Supreme Court’s (Supreme Court’s) ruling on sex and transgender discrimination. The District Court’s ruling comes after 20 states sued the EEOC over the guidance. Nonetheless, the EEOC continues to champion inclusivity and equity for the LGBTQI+ community. Earlier, the EEOC advanced visibility for LGBTQI+ individuals by including a non-binary “X” gender marker to its charge intake forms.

EEOC Guidance on Sex and Transgender Discrimination

In June 2021, the EEOC issued its guidance on preventing sexual orientation and transgender discrimination to support the Supreme Court’s 2020 landmark decision in Bostock v. Clayton County. In brief, this decision held that prohibition against sex discrimination under Title VII includes discrimination against sexual orientation and gender identity. Though not intended as a new, binding policy, the guidance instead clarified employer implications after the Supreme Court decision. Notably, it included information on pronoun usage and transgender bathroom policies, stating that:

• Employers may not deny an employee equal access to a bathroom, locker room, or shower that corresponds to the employee’s gender identity; and
• Intentionally and repeatedly using the wrong name and pronouns to refer to a transgender employee could contribute to an unlawful hostile work environment. Accidental pronoun misuse, however, does not violate Title VII.

District Court Blocks the EEOC Guidance

In July 2022, the Eastern District of Tennessee District Court ruled in favor of 20 states that had sued the EEOC over the guidance. Specifically, the states argued that it was improperly issued and substantively incorrect. Subsequently, the District Court’s preliminary ruling held that the EEOC did not follow proper rulemaking procedures when implementing the guidance. In essence, the EEOC backed its guidance with its enforcement “pledge,” although the guidance indeed lacked the force of law. Therefore, the District Court’s decision blocks the EEOC from relying on its guidance to prevent sex and transgender discrimination as part of its enforcement efforts. However, the District Court disagreed with the states’ second argument that the guidance itself was inconsistent with Bostock v. Clayton County and Title VII. In other words, the EEOC’s overall position on sexual orientation and transgender discrimination is still in line with federal law.

Gender Identity & Sexual Orientation in the Workplace

Even though the EEOC’s guidance is presently unenforceable, its content remains correct as a matter of law. Sexual orientation and transgender discrimination in employment still violate federal law under Title VII. Employers must address how ongoing legal developments regarding sex and transgender discrimination affect their anti-discrimination policies, benefit plans, employment practices, and training programs. To this end, Personnel Concepts developed the Gender Identity & Sexual Orientation in the Workplace digital compliance guide. The resource contains compliance guidelines on recent laws, court decisions, and gender identity and sexual orientation regulations. The resource bundle also includes a compliance checklist, an anti-discrimination training handout, and our Discrimination/Harassment Incident Report.