New EEOC Guidance? Not so fast!

Tennessee? - along with 17 other states - filed suit against the U.S. Equal Employment Opportunity Commission (“EEOC”) Monday alleging the Commission’s most recent enforcement guidance on harassment in the workplace I posted about last week unlawfully expands Title VII of the Civil Rights Act of 1964 (“Title VII).?

According to the Complaint, the Plaintiffs maintain while the agency relies on the Supreme Court’s Bostock v. Clayton County decision to inform its guidance, that decision’s “narrow holding” cannot be applied to “all transgender-related employment issues,” such as pronouns and bathroom use stating in relevant part the “EEOC proposed essentially to amend Title VII to create a de facto accommodation for gender identity — even though Bostock did not address the accommodations context,” the plaintiffs alleged.”?

In making its argument, Tennessee pointed to a similar, now-defunct technical assistance document promulgated by the EEOC in June 2021 Protections Against Employment Discrimination Based on Sexual Orientation or Gender Identity ?which also touched on dress codes, pronouns, and sex-segregated spaces. That guidance sought to explain the Bostock decision and its implications to employers. Tennessee (and 19 other states) sought an injunction in the U.S. District Court for the Eastern District of Tennessee — the same court now considering its request to halt the harassment guidance — arguing, as in the current case, that the agency misinterpreted the law as provided by Bostock. A judge granted a preliminary injunction for Tennessee and its co-plaintiffs in July 2022, and in a separate case pursued by Texas, a district court vacated the document that October.

The new harassment guidance reflects “essentially the same interpretation of Title VII’s prohibition on sex discrimination set forth in the agency’s vacated 2021 Guidance,” Plaintiffs argued. “Thus, the Proposed Enforcement Document again attempted to extend Bostock to situations that the Court explicitly declined to ‘prejudge’ — like bathrooms and pronouns — while also proposing to impose liability on employers for the conduct of their customers or other third parties.”

In addition to the lawsuit challenging the harassment guidance, Tennessee and many of the same states are suing to halt an EEOC rule implementing the Pregnant Workers Fairness Act, specifically challenging its abortion accommodation provisions.?

We’ve seen a boatload of new rulemaking activity across various agencies and a resulting flurry of lawsuits from states, industry trade groups, and employers challenging the new rules. It will be interesting to see how the lawsuits play out in conjunction with the next session of Congress where, under the Congressional Review Act (“CRA”), the Government Accountability Office is required to report on major rules that federal agencies make, including the procedural steps taken by the agencies. The CRA then presents an opportunity for Congress (and the President) to exert more control over the agencies by overturning the rules. Historically, the CRA has been more effective for overturning rules promulgated at the end of a President’s term - and as we’re all painfully aware - Biden’s term is ending and this is an election year.?

Stay tuned,?

Jessica