Texas Court Reins In EEOC’s Broad LGBTQ+ Guidance And Clarifies Federal Law

A federal court in Texas has declared unlawful a June 15, 2021, guidance issued by the U.S. Equal Employment Opportunity Commission (EEOC) addressing discrimination based on sexual orientation or gender identity.

In 2020, the U.S. Supreme Court decided that Title VII’s prohibition against “sex discrimination” includes discrimination against gay, lesbian and transgender employees. This Supreme Court case is called Bostock v. Clayton County, Georgia.

The EEOC’s June 2021 guidance took the position that Bostock applied to employer’s bathroom, pronouns and healthcare practices. Specifically, the EEOC told employers that because of the ruling in Bostock, they could not require a transgender employee to dress or use bathrooms in accord with their assigned sex and that using pronouns inconsistent with an employee’s gender identity could be unlawful harassment.

The State of Texas challenged the EEOC’s position by filing a lawsuit. The court agreed with Texas and ruled that the EEOC’s interpretation of Bostock was incorrect and overbroad. In fact, the Supreme Court specifically stated in Bostock that it was not addressing bathrooms, locker rooms, dress codes, and other policies and practices. The Bostock Court expressly explained: “[t]he only question before us is whether an employer who fires someone simply for being homosexual or transgender has . . . discriminated against that individual because of . . . sex. Whether other policies and practices might or might not qualify as unlawful discrimination . . . are questions for future cases.”

In declaring the EEOC’s guidance unlawful, the court drew a distinction between status and conduct. It explained that the Supreme Court’s Bostock decision relates only to status – i.e., the Supreme Court ruled that an employer cannot discriminate against an individual for being homosexual or being transgender. The Supreme Court did not address whether conduct which might correlate with a status, such as bathroom usage, dress code conformity, or pronoun usage, would also fall under Title VII’s protection against discrimination.

Nevada’s fair employment practices law is different than Title VII because Nevada law expressly prohibits discrimination against a person because of their sexual orientation or gender identity or expression. Thus, it remains to be seen whether the Nevada Supreme Court would find a distinction in NRS 613.330 between an employee’s status and conduct which correlates to that status. But under federal law, for the time being, the issue of whether policies and practices that correlate to sexual orientation and/or gender identity are covered under Title VII is not yet settled.

If you have questions about the court’s ruling or about LGBTQ+ conduct, please contact a KZA attorney.

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