The EEOC Litigation Review - 2023 - Report - Page 22
C.
Challenges To The EEOC’s Regulations
The EEOC’s enforcement views often create controversy. Sometimes those views
foster litigation and challenges to the Commission’s interpretations of Title VII.
In 2022, this came to roost in Texas. v. EEOC, Case No. 21-CV-194 (N.D. Tex. Oct. 1,
2022), where the court rule that the EEOC’s guidance on Bostock, et al. v. Clayton
County, Georgia, 140 S.Ct. 1731 (2021), was invalid and unlawful. The EEOC’s
guidance sought to delineate workplace protections for LGBTQ employees relative to
general workplace policies, including obligations related to dress codes, use of
bathrooms, and preferred pronouns. The court agreed with the legal challenge mounted
by the State of Texas over the Commission’s guidance. On June 15, 2021, the
Commission issued guidance on its interpretation of Bostock on the one-year
anniversary of the U.S. Supreme Court’s ruling. Bostock, in a 6 to 3 decision, held that
Title VII of the Civil Rights Act of 1964 prohibits discrimination against employees based
on their sexual orientation or gender identity. The EEOC’s guidance
on Bostock asserted that employers were obligated to accommodate LGBTQ
employees regarding dress codes, use of identifying pronouns, and bathrooms and
locker rooms. Critics of the Commission claimed that the guidance went far beyond the
holding in Bostock and constituted impermissible rulemaking. In what only can be
deemed an extraordinary legal challenge, the Texas Attorney General sued the EEOC
and sought declaratory and injunctive relief to invalidate the EEOC’s guidance and
enjoin its enforcement and implementation. The lawsuit also challenged an analogous
set of regulations issued by the U.S. Department of Health and Human Services (HHS).
After rulings on procedural issues, Texas brought a motion for summary judgment on
the grounds that the guidance of both agencies was inconsistent with the law; was
arbitrary and capricious; and constituted improper rulemaking without following
applicable notice-and-comment rulemaking procedures under the Administrative
Procedure Act (APA). The court agreed with Texas, rejected the positions of the EEOC
and the HHS, and granted summary judgment against the agencies. The key aspect of
the decision focused on the reach of Bostock. The court opined that the U.S. Supreme
Court confined its ruling to a holding that Title VII banned workplace bias due to an
employee’s homosexual or transgender status. In analyzing Bostock, the court
determined that the EEOC and the HHS misread the Supreme Court’s opinion,
as Bostock did not extend to “correlated conduct,” such as dress, bathrooms, use of
pronouns, or healthcare practices. Id. at 4. Based on this reasoning, the court ruled that
the EEOC and HHS violated Title VII and the APA by issuing what he deemed the
equivalent of substantive, legislative rules through improper procedures. As a remedy,
the court declared the guidance unlawful, set it aside, and awarded attorneys’ fees and
costs to Texas.
D.
EEOC Appellate Cases
In 2022, the Commission participated in several appellate proceedings stemming from
ADA and Title VII enforcement lawsuits. Significant decisions were rendered by the
Fifth, Seventh, and Tenth Circuits that addressed ADA liability, successorship liability for
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© Duane Morris LLP 2023
The EEOC Litigation Review – 2023
