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LGBT Battle for Bathroom Access, Pronouns Pivots to Worker Suits

July 19, 2022, 2:17 PM

Private litigants will need to take up the mantle of suing employers for failing to call transgender workers by their correct pronouns or give them access to facilities that correspond to their gender identity, now that a judge has put the brakes on federal guidance on the matter.

Judge Charles Atchley of the US District Court for the Eastern District of Tennessee last week granted a bid from a group of Republican states to block guidance from the Education Department and the US Equal Employment Opportunity Commission on the effect of the 2020 US Supreme Court ruling in Bostock v. Clayton County, which held that LGBTQ employees are protected from discrimination under Title VII of the Civil Rights Act of 1964.

Employers only have a duty under federal law to not fire somebody because of gender identity or sexual orientation, said Atchley, a Trump appointee. “The EEOC’s guidance identifies and creates rights for applicants and employees that have not been established by federal law, and it directs employers to comply with those obligations to avoid liability,” he said.

The court’s ruling narrowly focuses on the substance of the EEOC’s interpretation of Bostock. That leaves room for employees to bring Title VII claims on the issues touched on in the guidance, even if the agency itself is blocked from doing so.

“What this injunction does make clear is if you live in a state where there’s a law that prohibits providing bathroom access based on anything other than gender assigned at birth, then the EEOC or Department of Education can’t come after you,” said Erin Butcher, an attorney in the higher education practice at Bricker & Eckler LLP in Columbus, Ohio.

Invalid Process

According to the EEOC guidance, LGBTQ workers’ protections under Title VII include the ability to use a sex-segregated bathroom that corresponds to their gender identity and the right to be free of harassment that includes intentional and repeated use of a transgender person’s incorrect name or pronoun.

Atchley’s ruling primarily invalidated the EEOC’s guidance because it didn’t go through the proper regulatory pathway. It was published straight from the chair’s office in June 2021 without undergoing a public comment period.

Since President Joe Biden appointed Charlotte Burrows as EEOC chair in January 2021, the commission has operated with a Democratic chair and a Republican majority. That dynamic has made it difficult to pass any progressive proposals that require a commission vote.

Republican EEOC commissioners applauded Friday’s ruling, which they said Burrows rolled out without their input.

“Going forward, I call upon Chair Burrows to adhere to the requirements of the Administrative Procedure Act, comply with the voting requirements of the EEOC, seek input from all stakeholders, and engage in a fully transparent rule-making process,” Republican Commissioner Janet Dhillon, who served as EEOC chair under the Trump administration, said in a statement.

Burrows’ office didn’t immediately respond to a request for comment.

Private Lawsuits

Atchley’s ruling doesn’t say that the EEOC’s guidance is unconstitutional or that it necessarily violates the statutes that it interprets, said Brian Sutherland, an attorney at plaintiff firm Hall & Lampros LLP.

“It’s a procedural problem, not necessarily a substantive one,” said Sutherland, who represented the plaintiff in Bostock. That allows the EEOC to issue new guidance that follows the proper procedures, he said.

“These same interpretations or ones that are similar could be undertaken in the future. The fact that the court said that these other procedures should have been followed, doesn’t mean that these interpretations are incorrect,” Sutherland said.

Although workers who bring discrimination suits often lean on EEOC guidance to make their arguments, nothing in the ruling precludes them from bringing a case based on a similar interpretation of Title VII.

“Legally speaking, you can’t rely on enjoined agency guidelines,” said Joseph Pettygrove, who leads the employment practice at Kroger Gardis & Regas LLP in Indianapolis. “But in the sphere of HR law and Title VII, it’s almost like ‘so what,’ because you don’t need the EEOC to enforce this.”

Workers could win private Title VII lawsuits on legal theories spelled out in the EEOC’s guidance, Pettygrove said. Individual cases, however, will depend on the facts at hand and claims will be subject to rules from Title VII case law, such as unlawful harassment needing to be based on severe or pervasive conduct, he said.

Challenges Ongoing

Litigation over the LGBTQ guidance won’t be resolved quickly, attorneys said.

A Biden administration appeal of Atchley’s decision may face skepticism from the US Court of Appeals for the Sixth Circuit, which has been a conservative activist court on discrimination issues in the education space, Butcher said.

For example, the Sixth Circuit last year revived a professor’s free speech lawsuit against Ohio-based Shawnee State University for disciplining him for not using a student’s correct pronoun, she noted. The school later settled the lawsuit for $400,000.

Companies need to develop their own plans for how to handle issues covered by the guidance, and not just wait and see what happens in litigation related to the injunction, Pettygrove said.

“You’re going to be waiting and seeing for a while,” he said. “In all likelihood, you’re going to be fielding questions and complaints from employees on both sides of the issue in the interim.”

Emily G. Massey, an employer-side attorney at Ward and Smith PA, said in the meantime she will still recommend that her clients follow the EEOC guidance.

“We don’t want the EEOC to view our client’s conduct as discriminatory and we don’t want our clients to become a ‘test case’ for this,” Massey said.

To contact the reporters on this story: J. Edward Moreno in Washington at jmorenodelangel@bloombergindustry.com; Robert Iafolla in Washington at riafolla@bloomberglaw.com

To contact the editors responsible for this story: Laura D. Francis at lfrancis@bloomberglaw.com; Martha Mueller Neff at mmuellerneff@bloomberglaw.com