EEOC LGBTQ+ Guidance Nixed by Federal Judge

A Texas federal judge invalidated EEOC guidance that excepted LGBTQ+ employees from workplace bathroom policies and dress codes, ruling that the guidance unlawfully expanded the scope of a landmark Supreme Court decision that prohibited job discrimination on the basis of sexual orientation and gender identity. The decision is the latest stage of a larger legal battle concerning Title VII protections for LGBTQ+ individuals. 

The EEOC guidance was issued following the landmark 2020 Supreme Court decision in Bostock v. Clayton County, which held that Title VII prohibits job discrimination on the basis of sexual orientation and gender identity. The guidance required employers to allow exceptions from workplace policies regarding the usage of bathrooms and locker room areas as well as dress codes, based on employee gender identities. The state of Texas sued the EEOC over the guidance, claiming it unlawfully misinterpreted the Bostock decision. 

In Texas v. EEOC, N.D. Tex. No. 21-00194, Judge Matthew Kacsmaryk held that the EEOC guidance was unlawful. According to Judge Kacsmaryk, the Bostock decision merely established that Title VII protects LGBTQ+ individuals from employer discrimination, but “not necessarily all associated actions, which remain subject to case-by-case Title VII analysis.” Thus, according to Judge Kacsmaryk, the EEOC erred in its guidance by claiming that Bostock made enforcing workplace bathroom policies and dress codes, specifically, unlawful discrimination. Notably, Judge Kascmaryk did not rule on whether such actions could in fact be discriminatory.