Injunction blocks EEOC sexual orientation guidance: What it means

A federal district court in Tennessee has issued a preliminary injunction that temporarily blocks the Equal Employment Opportunity Commission (EEOC) from enforcing a technical assistance document it issued last year regarding discrimination based on sexual orientation or gender identity.

The court ruled that the plaintiffs, consisting of 20 state attorneys general, are likely to succeed on their claim that the technical assistance document violates the Administrative Procedure Act (APA).

A primary impetus for the suit is a technical assistance document that the EEOC issued in June of 2021. The EEOC released the document on the one-year anniversary of the ruling in Bostock v. Clayton County, in which the U.S. Supreme Court ruled that for purposes of Title VII’s ban on sex discrimination, “it is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex.” Translation: Discrimination based on homosexuality or transgender status is discrimination based on “sex” under Title VII.

A similar document, issued by the Department of Education and applicable to educational institutions, is also challenged in this suit.

The high Court carefully circumscribed its holding in Bostock, specifically noting that it was not meant to conclusively resolve questions relating to state laws, dress codes, or bathroom and locker room use.

Despite this express reservation, the EEOC document advises that while employers may separate bathrooms by sex, they may not, consistent with Title VII, deny any employee access to a bathroom that corresponds to their gender identity. The same goes for locker rooms and showers, it added.

It further advises that employers covered by Title VII may not require a transgender person to dress or otherwise present in a manner that is inconsistent with that person’s gender identity.

At the same time, the EEOC said the document “does not have the force and effect of law and is not meant to bind the public in any way.” Instead, it advised that the document is intended merely to provide added clarity regarding existing legal requirements.

Sexual Orientation Guidance Under Fire

The lawsuit claims that the document is both procedurally and substantively unlawful under the APA and the Constitution. More specifically, the states say the document is procedurally invalid because it was adopted without adhering to required notice and comment procedures. They further simply allege that it is contrary to law.

Ten of the plaintiff states identified state laws that conflict with the guidance document. For example, Tennessee has a law that gives employees a cause of action against public schools that permit a member of the opposite sex to use a multi-occupancy restroom or changing facility while others are present.

The states say the guidance essentially forces them to choose between following their own laws and the guidance, while noting that an enforcement action against them based on violation of the guidance would put them at risk of losing significant federal funding.

They asked the court to issue a preliminary injunction that would prevent the EEOC from enforcing the guidance pending the resolution of the case on the merits. The defendants responded with a motion to dismiss.

The court ruled for the states.

Likely to Succeed

It said they are likely to succeed on the merits of their claim that the agency released the guidance without adhering to applicable notice and comment requirements. The EEOC said it was not required to adhere to notice-and-comment rules because the guidance is merely interpretive and does not set forth a legislative rule. But the court disagreed, finding that the states can succeed on their claim that the document is in fact a legislative rule that creates new rights and obligations.

The states also carried their burden to show irreparable harm, the court added, because they “suffered an immediate injury to their sovereign interests when [the EEOC] issued the challenged guidance.”

The harm to the states if an injunction was denied outweighed any harm that the EEOC would suffer if it was granted, the court added.

Finally, the court said the public interest weighed in favor of granting the injunction because the public has an interest in making sure that federal agencies comply with their obligations under the APA.

The court thus granted the motion for a preliminary injunction and restrained the EEOC from implementing the technical assistance document.

Key Takeaways

First, it is important to note that this decision issued only preliminary relief and that a final decision on the merits of the case has not been reached. Nonetheless, it is a significant development that highlights the limits on the reach of the EEOC to enforce Title VII and other federal laws against discrimination.

Essentially, while the EEOC is empowered to enforce and interpret Title VII, it cannot create new legal obligations under it simply by issuing an unchecked guidance document.

The agency will undoubtedly continue to assert that the guidance is interpretive rather than legislative and thus is valid. For now, however, it is likely reeling from this significant blow to its present and future ability to enforce the guidance document. At the same time, the ruling emboldens the plaintiff states to proceed with confidence on the merits of their allegations.

State of Tennessee v. United States Dep’t of Educ., No. 3:21-cv-308, 2022 WL 2791450 (E.D. Tenn. 7/15/22).