EEOC Under Fire: States Sue to Block New Harassment Guidance

As we predicted here a short time ago, newly released EEOC guidance on workplace harassment is facing a courtroom challenge that says some parts of the guidance are not valid.

Led by Tennessee, 18 states have sued the EEOC, calling the guidance “an attack on our constitutional separation of powers” and an “end-run around our constitutional institutions.”

In particular, the new suit objects to parts of the guidance relating to bathroom use and the use of preferred pronouns.

Near the end of April, the EEOC released a new harassment guidance document that newly outlined circumstances under which covered employers may – in its view – be held liable for unlawful harassment under Title VII.

Much of the guidance restated long-established principles relating to employer liability. But the guidance also broke some new ground as far as official EEOC guidance is concerned, particularly with respect to bathroom and pronoun use.

EEOC guidance addresses pronouns, bathroom use

Specifically, the guidance advised that prohibited sex-based discrimination under Title VII includes:

• “repeated and intentional use of a name or pronoun [that is] inconsistent with the individual’s known gender identity (misgendering)”; and
• “denial of access to a bathroom or other sex-segregated facility [that is] consistent with the individual’s gender identity.”

To support this position, the agency relied on the Supreme Court’s watershed 2020 ruling in Bostock v. Clayton County, in which the Court ruled that Title VII’s ban on sex discrimination prohibits employers from firing an employee based on their sexual orientation or sexual.

That ruling specifically said it was not addressing “bathrooms, locker rooms, or anything else of the kind.”

Despite that express reservation, the EEOC’s harassment guidance says Title VII applies to bathroom use.

Suit: EEOC went too far

The new suit asks a Tennessee federal district court to set aside the enforcement guidance document as unlawful. It says the guidance wrongfully purports to resolve “highly controversial and localized issues” that should reserved for Congress and the individual states to address.

The suit seizes on what it says is the narrowness of the Bostock decision, saying the ruling considered only whether Title VII bans employment termination based on one’s homosexual or transgender status.

“The Court [in Bostock] did not consider or decide questions about any other workplace activity or employment action,” the suit reads.

The suit says the new guidance imposes unrecoverable compliance costs on states while fundamentally infringing on their sovereignty.

5 claims for relief

The suit includes five specific claims for relief.

First, it asserts that the new harassment guidance document violates the Administrative Procedure Act (APA). It alleges that the guidance is contrary to Title VII and exceeds the EEOC’s statutory authority. The guidance expands Title VII beyond its text and structure, the suit says.

Second, the suit alleges violations of federal constitutional provisions relating to federalism and sovereign immunity as well as free speech and religious liberty.

By requiring the use of preferred pronouns, it alleges, the document unconstitutionally compels and restrains speech. The guidance also “treads on religious freedoms,” the suit adds.

The suit’s allegations relating to free speech and religious liberty are likely to become a strong focal point of the litigation as the case proceeds.

Third, the suit says the document is arbitrary and capricious in violation of the APA.

Fourth, it broadly alleges that the EEOC itself is “unconstitutionally structured” and says its rules are therefore void.

Finally, the suit presents a claim for a declaratory judgment.

Various relief is sought

As relief, the suing states want the court to:

• Declare that the new guidance conflicts with Title VII
• Set the new guidance aside
• Declare that the EEOC lacked the authority to issue the document
• Specifically declare that the document’s “gender-identity accommodation mandate” is arbitrary, capricious and invalid
• Declare that Title VII does not ban employers from having showers, bathrooms and other living facilities that are separated by biological sex
• Declare that Title VII does not force employers to use a transgender person’s preferred pronouns
• Block enforcement of the guidance’s provisions relating to gender identity.

The states that joined Tennessee in the lawsuit are Alabama, Alaska, Arkansas, Georgia, Indiana, Iowa, Kansas, Kentucky, Mississippi, Missouri, Nebraska, Ohio, South Carolina, South Dakota, Utah, Virginia and West Virginia.