Who is my “source”?
I got the scoop from EEOC Commissioner Andrea Lucas, who updated us on LinkedIn over the weekend about a Tennessee federal judge who entered this preliminary injunction to stop the U.S. Equal Employment Opportunity Commission from implementing this technical assistance document issued in June 2021 that purports to explain employers’ post-Bostock obligations under Title VII concerning dress codes, bathrooms, locker rooms, shows, and use of preferred pronouns or names.
So, where did the EEOC go awry?
TL;DR: The EEOC didn’t follow the proper procedural rules before issuing its “Technical Assistance Document.”
For a slightly more detailed explanation, I’ll defer to Commissioner Lucas:
“[EEOC] Chair Burrows unilaterally issued the ‘technical assistance’ document addressing the Supreme Court’s decision in Bostock v. Clayton County as well as issues regarding dress codes, use of pronouns, and access to workplace facilities implicating significant privacy and safety concerns (such as bathrooms, locker rooms, and showers), instead of working with the full Commission to attempt to issue guidance approved by a majority vote of the Commission on such issues post-Bostock
…
For the EEOC to have addressed these issues properly, the Commission should have worked together, debated, held public meetings, and, most importantly, voted on the standards it seeks to apply to the nation’s workforce in guidance, as informed by Bostock’s holding and finalized after providing stakeholders with notice and the opportunity to comment. But that did not, and has not, occurred. The temporary injunction blocking Chair Burrows’ unilateral policy document therefore is a welcome development.”
And like the plaintiffs who sued to enjoin enforcement of the EEOC’s guidance, Commissioner Lucas felt it unfairly expanded the Supreme Court’s landmark Bostock decision.
“The Supreme Court in Bostock addressed only the question of whether an employer who fires an individual for being homosexual or transgender has discriminated against that individual ‘because of such individual’s sex.’
…
However, under the guise and cover of Bostock, the Chair purported to extend to private
employers (and state government employers) several (pre-Bostock) federal sector administrative decisions relating to dress codes, use of pronouns, and access to bathrooms, locker rooms, and showers—implying that compliance with Bostock requires nationwide acquiescence to the policies and interpretations in these decisions. This sleight of hand is inexplicable when juxtaposed with the Court’s decision in Bostock, including its express statements that its decision did not concern, much less resolve, some of these critical issues.”
The court’s ruling does not stop employees from asserting Title VII claims regarding dress codes, misgendering, bathroom use, and the like. While the “net-net” is that the EEOC cannot enforce its “technical assistance,” Courts will have to step in to answer the open questions from Bostock.
Plus, state (and local) law may impose more restrictions beyond Title VII.