Texas Court Finds EEOC’s Guidance on Sexual Orientation and Gender Identity Discrimination Unlawful

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Attorney Harrison Oldham



On October 1, 2022, the United States District Court for the Northern District of Texas held that Equal Employment Opportunity Commission (“EEOC”) guidance addressing sexual orientation and gender identity discrimination in the workplace is unlawful.  The case is State of Texas v. EEOC.




On June 15, 2020, the Supreme Court issued its landmark decision in Bostock v. Clayton County, GA, which held that the prohibition on sex discrimination under Title VII of the Civil Rights Act of 1964 (“Title VII”) also prohibits workplace discrimination on the basis of sexual orientation and gender identity. Not surprisingly, in the wake of the Bostock opinion, employers and employees wondered what the implications would be on other policies, such as the use of restrooms and employee dress codes.  Some of those questions even made it to court.  For example, in State of Texas v. EEOC, a federal judge decided that the majority in Bostock failed to answer those questions and thereby precluded the EEOC from issuing guidance on them.


Despite the ruling, On June 25, 2021, the EEOC issued guidance outlining the Bostock decision and its implications for LGBTQ+ workers and employers.  Among other topics, the guidance states that certain types of workplace conduct may constitute discrimination on the basis of sexual orientation or gender identity and give rise to an unlawful hostile work environment, including:


  1. Requiring a transgender employee to dress in accordance with the employee’s sex assigned at birth.
  2. Denying an employee equal access to a bathroom, locker room, or shower that corresponds to the employee’s gender identity.
  3. Intentionally and repeatedly using the wrong name and pronouns to refer to a transgender employee.


As such, the EEOC’s guidance states that an employer covered under Title VII:


  1. May not discriminate against an employee who does not conform to gender stereotypes.
  2. May not require a transgender employee to dress in accordance with the employee’s sex assigned at birth.
  3. May not deny an employee equal access to a bathroom, locker room, or shower that corresponds to the employee’s gender identity.


The guidance also takes the position that, in certain circumstances, the use of pronouns or names that are inconsistent with an individual’s gender identity could constitute harassment.


The State of Texas sued the EEOC in response to the EEOC’s guidance.  In doing so, the State of Texas argued that the EEOC’s guidance does not coincide with Title VII because it diverges from the stated protections of Title VII as interpreted through Bostock.  Accordingly, Texas asked the court to: (i) declare the guidance unlawful; (2) vacate and set aside the guidance; and (3) enjoin enforcement or implementation of the guidance.


The Court’s Decision


On October 1, 2022, a District Court Judge for the Northern District of Texas granted the State’s request for declaratory judgment, declaring the EEOC guidance unlawful and vacating and setting aside the guidance nationwide.  In doing so, the court reasoned that the EEOC misinterpreted Bostock by “melding ‘status’ and ‘conduct’ into one catchall protected class covering all conduct correlating to ‘sexual orientation’ and’ gender identity.’” In other words, under Bostock, Title VII prohibits employment discrimination because of an individual’s sexual orientation and gender identity status but does not necessarily prohibit all correlated conduct.


In response, the EEOC argued status and conduct “routinely meld in Supreme Court and Title VII cases where a person’s sexual attraction or identification closely correlate to particular conduct.” However, the court rejected the EEOC’s argument because the court found that the majority opinion in Bostock never held that “‘traits or actions’ categorically merge with the status ‘being’ in every Title VII case.”


Thus, by interpreting the Bostock decision to prohibit conduct relating to dress codes, bathrooms, and pronouns, the EEOC took Bostock a step too far.  Accordingly, the court reasoned it was improper for the EEOC to issue guidance interpreting Bostock that extends to individual conduct, such as bathroom access.


The EEOC also argued that it did not create a substantive rule.  It was, instead, issuing guidance to the public whereby the EEOC intended to express its views as to “the effect of the Supreme Court’s decision in Bostock on [the EEOC’s] interpretation of Title VII.” The court also disagreed with this argument, stating that the EEOC guidance imposes dress code, bathroom, and pronoun accommodations as “existing requirements under the law” and “established legal positions” which are not required under Title VII according to the court’s reading of Bostock.


Key Takeaways


Currently, many people expect the EEOC to appeal the ruling.


While this matter may evolve through appeal, it is essential to remember that several states and cities have protective statutes prohibiting discrimination against transgender employees, including as it relates to the points outlined in the EEOC’s guidance.  However, regardless of what happens next with the EEOC’s guidance, employers should ensure that their workplace anti-discrimination policies include protections on the basis of employees’ sexual orientation and gender identity.


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About Harrison Oldham

Harrison grew up in Mansfield, Texas. He attended Texas A&M University for his bachelor’s degree, where he met his wonderful wife, Kelsey. After graduating magna cum laude from Texas A&M, he attended SMU Dedman School of Law, graduating with honors in 2012. Today, Harrison and his wife live in Dallas, Texas with their son, Teddy.

Since graduating from SMU Law, Harrison has worked exclusively in the field of business law. He has spent time in private practice and in-house, working with clients of every size; from single person startups to Fortune 250 companies. Today his practice focuses on serving the diverse needs of businesses and individuals throughout Texas. You can learn more about Harrison by visiting his website, at: http://lonestarbusinesslaw.com/.

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