In June 2021 the U.S. Supreme Court ruled in Bostock v. Clayton County that Title VII’s prohibition on sex discrimination in employment includes discrimination based on sexual orientation or transgender status (gender identity).

A short time after that ruling, the Equal Employment Opportunity Commission (EEOC) issued guidance on it. The guidance says that employers should allow transgender employees to access bathrooms aligned with their gender identity and that acts countering a person’s gender expression or pronouns could constitute unlawful discrimination.

That guidance has come under question. While the guidance document is still readable on the EEOC website, notes have been added at the top linking to two federal court cases. The notes read:

1. In July 2022, a federal district court preliminarily enjoined the EEOC from implementing this document as to plaintiffs in Tennessee. et al. v. U.S. Dep’t of Educ. et al., Case No. 3:21-cv-308 (E.D. Tenn.).
2. In October, 2022, a federal district court vacated this document in Texas v. EEOC et al., 2:21-CV-194-Z (N.D. Tex.).

The 2022 court cases

In the first case, the Attorneys General of 20 states filed suit in Tennessee challenging the EEOC guidance, as well as other guidance issued by the Department of Education, on the grounds that the issuance of the guidance did not comply with applicable legal requirements.

In the second case, the State of Texas filed suit separately challenging the EEOC guidance and other related guidance from the U.S. Department of Health and Human Services, basically on the same grounds as the other suit.

The federal judge in Texas who ruled that the EEOC guidance on LGBTQ protections is unlawful said that the EEOC misinterpreted the landmark U.S. Supreme Court decision in Bostock v. Clayton County. The judge’s opinion states that Bostock protected LGBTQ workers “but not necessarily all correlated conduct.”

What does this mean for employers?

Employers arguing that Title VII prevents discrimination only when it comes to job actions such as hiring, firing, and other terms of employment, but not ALL aspects of work life (bathrooms, pronouns, dress codes, etc.) may be technically correct under these two court rulings. However, successful employee relations goes above and beyond the letter of the law.

To achieve and maintain a respectful workplace that is positioned to attract and retain workers, it is still a best practice to follow the EEOC’s 2021 guidance.

Key to remember: While these court rulings call the EEOC guidance into question, remember that state and local jurisdictions may have laws and ordinances that provide protections for LGBTQ employees.