Published June 15, 2021
Today, Charlotte Burrows, chairwoman of the Equal Employment Opportunity Commission (EEOC), posted a guidance document purporting to apply Bostock v. Clayton County, which redefined Title VII’s prohibitions on discrimination “because of sex” to include sexual orientation and transgender status in certain contexts.
Commissioner Andrea Lucas, a voice of reason at the EEOC, released the following statement criticizing the publication of the guidance (edited for length):
I am disappointed that today, Chair Burrows unilaterally issued a “technical assistance” document addressing the Supreme Court’s decision in Bostock v. Clayton County and related issues, instead of working with the full Commission to issue guidance approved by a majority vote of the Commission on such issues post-Bostock. . . .
The Supreme Court in Bostock addressed only the question of whether an employer who fires an individual for being homosexual or transgender has discriminated against that individual “because of such individual’s sex. . . .”
However, under the guise and cover of Bostock, the Chair purports to extend to private employers several (pre-Bostock) federal sector administrative decisions relating to dress codes, use of pronouns, and access to bathrooms, locker rooms, and showers—implying that compliance with Bostock requires nationwide acquiescence to the policies and interpretations in these decisions. This sleight of hand is inexplicable when juxtaposed with the Court’s decision in Bostock, including its express statements that its decision did not concern, much less resolve, some of these critical issues. . . .
Old decisions issued in cases solely involving federal government employee complaints and other pre-Bostock actions do not bind the Commission’s hands. The Commission is free to change its posture and adopt different positions, or on the other hand, reach the same prior conclusions based on the rationales approved by the Bostock Court. Either way, the full Commission has not yet been given the opportunity to do so.
Lack of proper process leaves this guidance ripe to legal challenge as do its many substantive errors. Chief among the mistakes is the idea that Bostock ruled on the amorphous, infinitely multiplying concept of gender identity. It didn’t. Bostock presumed sex is binary and biological and said employee-dismissal prohibitions in Title VII applied to “transgender status,” meaning a person who identifies as the opposite of one’s biological sex of either male or female. Bostock made no mention of the many gender identities now in vogue including genderfluid, agender, genderq***r, two-spirit, third gender, or any other purported combination of male and female, or lack thereof. The decision certainly did not hold that failure to use a person’s preferred pronouns (such as hir, zie, or they) constitutes harassment, but the guidance acts as if it did.
Perhaps most troubling, as Commissioner Lucas points out, the guidance seeks to prohibit employers from having dress codes, and shared bathroom, locker, and shower policies based on biological sex (what the guidance calls sex “assigned” at birth) as opposed to subjective gender identity. The guidance takes the startlingly unscientific proposition that a person’s sex is ultimately what a person declares it to be, regardless of DNA, birth certificates, or presence or absence of reproductive organs. If employers and employees fail to conform to this new edict, they now risk the EEOC’s wrath.
Roger Severino is a Senior Fellow at the Ethics and Public Policy Center.
