Republican lawmakers are pressing the chair of the Equal Employment Opportunity Commission to rescind a regulatory document on LGBT workplace policies.
Sens. Josh Hawley (R., Mo.) and Mike Lee (R., Utah) sent a letter Wednesday to EEOC chair Charlotte Burrows about the document, which advises employers that the Supreme Court’s 2020 Bostock v. Clayton County decision requires them to grant LGBT workers access to their preferred bathroom facilities and raises failure to use preferred pronouns to the level of unlawful harassment. The letter notes senior agency officials believe the document was issued outside normal channels and goes well beyond the Court’s holding, citing reporting from the Washington Free Beacon.
"This guidance is yet another example of how Democrat-appointed bureaucrats wish to leverage the machinery of the administrative state to bully private employers to kowtow to the social justice agenda," the letter reads.
The letter highlights fractures in the Senate Republican caucus over managing the emboldened agency, which was created by the 1964 Civil Rights Act to enforce workplace discrimination laws. On the same day Hawley and Lee sent their letter to Burrows, the Senate confirmed Jocelyn Samuels, a Democrat, to another five-year term on the EEOC by a 52-47 vote. A handful of Republicans gave Samuels a boost throughout the process.
Sens. Susan Collins (R., Maine) and Lisa Murkowski (R., Alaska) voted Wednesday to confirm Samuels. Sen. Chuck Grassley (R., Iowa) voted with Democrats on a procedural vote to advance her nomination earlier in the day. And Sen. Bill Cassidy (R., La.) joined Democrats in May to advance Samuels's nomination to the full Senate from the Senate Health, Education, Labor, and Pensions Committee in May.
In Bostock the Supreme Court said that an employment nondiscrimination law prohibits hiring and firing because of a person's sexuality or gender identity. In the June guidance document, Burrows advised that the substance of the decision requires employers to go further and accommodate LGBT workers as to their preferred pronouns as well as bathroom and shower access. The document does not address possible free speech objections and treats religious liberty concerns only with respect to explicitly religious employers or personnel who perform ministerial roles.
A high-ranking EEOC official told the Free Beacon in June that Burrows was required by agency rules to put the Bostock guidance document to a vote of the full commission. Her decision to issue it unilaterally, the official said, showed "flagrant disregard" for the agency's own rules, a point underscored in the Hawley-Lee letter.
"This irregularity therefore gives rise to the inference that the Democrat-appointed chair of the EEOC skirted regular protocol in order to enact her preferred policy preferences, knowing full well that a majority of the commissioners would never vote for this outcome if the required process had been followed," the letter reads.
The letter also requests records of any communications between Burrows and the other commissioners, the Justice Department, and the White House.
The guidance document does not have the force of law. But Hawley and Lee predict that many employers will choose to comply with its dictates.
"Employers across the country will now feel compelled, under threat of prosecution, to comply with this incorrect and extreme interpretation of Supreme Court precedent," the letter reads.
The EEOC did not respond to a request for comment.