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Court Finds EEOC Guidance on Sexual Orientation and Gender Identity Unenforceable in Certain States

In 2020, the U.S. Supreme Court held in Bostock v. Clayton County that Title VII of the Civil Rights Act’s (“Title VII”) prohibition on employment discrimination because of sex includes discrimination on the basis of sexual orientation and gender identity. In response, the EEOC issued guidance that elaborates on these employment protections, providing several scenarios that it considers violate Title VII. The guidance covered a host of areas including protections for job applicants, sex stereotyping, dress codes, pronouns and names, bathroom and locker room access, and more.

20 states sued the EEOC related to its guidance on the use of correct pronouns or giving access to facilities that correspond to the individual’s gender identity, seeking for the guidance to be thrown out, which has resulted in a temporary injunction being issued by a Tennessee federal judge earlier this month, reasoning that the guidance directly conflicted with laws in some of the plaintiff states and noting that the Bostock decision explicitly declined to address issues surrounding bathrooms, locker rooms and dress codes.

It should be noted that the court’s ruling is temporary, pending an official ruling, and only applies in the states that sued, which includes, Alabama, Alaska, Arizona, Arkansas, Georgia, Idaho, Indiana, Kansas, Kentucky, Louisiana, Mississippi, Missouri, Montana, Nebraska, Ohio, Oklahoma, South Carolina, South Dakota, Tennessee, and West Virginia. The ruling also only controls the EEOC and does not prevent employees from suing for gender discrimination because of sexual orientation or gender identity.

Next Steps for Employers

While EEOC’s enforcement actions are currently limited in these states, employers should be aware this temporary injunction does not prohibit employees in these states from bringing lawsuits challenging an employers’ practices with respect to sex discrimination under Title VII on issues not touched by this guidance. Therefore, employers in the above-mentioned states should work with their legal counsel to ensure that they avoid potential legal liability under Title VII while complying with any conflicting state laws.

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