Career Officials Chafe at EEOC Transgender Guidance

Equal Employment Opportunity Commission goes beyond Supreme Court ruling

Transgender Bathrooms
June 25, 2021

Career lawyers at the Equal Employment Opportunity Commission are chafing at a new guidance document on LGBT workplace rights that goes well beyond the Supreme Court’s landmark 2020 holding in Bostock v. Clayton County.

On June 15, Biden-appointed commission chair Charlotte Burrows unilaterally issued the document, which advises that Bostock requires employers to grant LGBT workers access to their preferred bathroom facilities and raises failure to use a worker's preferred pronouns to the level of unlawful harassment. Some agency lawyers are anxious about defending the document in court, given that it goes well beyond the Court’s holding, an EEOC employee told the Washington Free Beacon.

The document was issued without a vote of the EEOC’s five-member panel, which some agency officials view as a violation of agency procedures.

"The Chair’s decision to issue this guidance document without putting it to a Commission vote evidences a flagrant disregard for the EEOC’s own procedures and for the rule of law," a high-ranking EEOC official told the Free Beacon. "No one who has actually read the Bostock opinion could make such sweeping claims in good faith."

The document is an early indication of the Biden administration’s commitment to social progressivism. While the EEOC is independent of the White House, Burrows was elevated to the chairmanship by President Joe Biden. And on his first day in office, the president issued an executive order directing federal agencies to make clear that existing civil rights laws provide protections for LGBT people. The order touches on everything from housing to refugee resettlement.

The June 15 fact sheet is not a binding EEOC pronouncement. The document itself acknowledges that it does not have "the force and effect of law." But it does set a marker many employers will choose to comply with, rather than risk an EEOC investigation or litigation with the agency.

Per the new guidance, employers cannot ask transgender workers to comply with a sex-specific dress code or use bathrooms corresponding with their biological sex. And using old names or pronouns in reference to a trans colleague may, if pervasive enough, constitute unlawful harassment.

Nor may assignments or hiring decisions turn on client expectations, the document adds. A companion case to Bostock, R.G. and G.R. Harris Funeral Homes v. EEOC, involved a funeral director named Aimee Stephens who was fired after a male-female transition. The funeral home feared the transition would disturb clients in the midst of their mourning.

Though the document purports to faithfully apply Bostock, the decision expressly declined to resolve the issues the EEOC release addressed.

"[The employers] say sex-segregated bathrooms, locker rooms, and dress codes will prove unsustainable after our decision today," the ruling reads. "But none of these other laws are before us; we have not had the benefit of adversarial testing about the meaning of their terms, and we do not prejudge any such question today."

Republican commissioners hold a three-member majority on the five-member panel. The EEOC is an independent agency, and commissioners serve staggered five-year terms that do not coincide with particular administrations. The commission has not held an official public meeting since Biden took office.

EEOC spokeswoman Christine Saah Nazer told the Free Beacon the chair was not obligated to put the document to a commission vote. The agency, she said, had already adopted positions reflected in the document for federal employees. Because the document merely applies that existing guidance to private employers, it did not require commission approval.

She added that the document’s assertions are "not inconsistent" with the Supreme Court’s ruling.

"EEOC is also charged by statute with the responsibility to enforce the law which includes applying established principles to new fact patterns," Nazer said. "It is not restricted to opining only on issues the Supreme Court has already decided. In the technical assistance, the Commission is laying out only analyses that have been previously adopted by Commission vote and that are not inconsistent with the Bostock decision."

The document surfaced as the Senate is considering the renomination of a Democratic EEOC commissioner, Jocelyn Samuels, and is likely to complicate her confirmation to another five-year term. Top Republican lawmakers did not respond to requests for comment about Samuels’s nomination.