Dive Brief:
- A federal district court should grant summary judgment to the U.S. Equal Employment Opportunity Commission in a Tennessee lawsuit challenging the agency’s 2024 workplace harassment guidance because the plaintiff states lack standing and the guidance is not reviewable by the court, attorneys for the Justice Department said in a filing on Friday.
- Multiple states challenged the guidance, which clarified EEOC’s stance on gender-identity and sexual-orientation discrimination under Title VII of the 1964 Civil Rights Act. Lead plaintiff Tennessee claimed that the guidance unlawfully interpreted a 2020 U.S. Supreme Court decision to specify workplace accommodations and policies employers must adopt with respect to LGBTQ+ workers.
- EEOC noted that President Donald Trump published an executive order directing the agency to rescind the challenged aspects of the guidance and that EEOC would begin reconsideration once a quorum is reestablished. But the states are not entitled to judicial relief, it claimed, in part because they did not suffer redressable injuries, incur administrative costs or face enforcement actions due to the guidance.
Dive Insight:
While litigation against the guidance continues, EEOC Acting Chair Andrea Lucas has already signaled that the agency will comply with Trump’s order and abandon it. But any attempt to do so will have to wait until the agency restores its quorum, which it lost when Trump fired two Democratic commissioners prior to the expiration of their terms.
The guidance, published during the Biden administration, said that harassment could include “outing” individuals as well as misgendering, comments related to gender-nonconforming appearance and the denial of access to a bathroom or other sex-segregated facility consistent with a person’s gender identity.
In formulating the guidance, EEOC incorporated the Supreme Court’s Bostock v. Clayton County, Ga. decision which held that Title VII prohibits discrimination on the basis of sexual orientation or gender identity.
The Trump administration argued that the Administrative Procedure Act authorizes judicial review only of final agency actions and that the harassment guidance did not fall under this category. As such, the guidance “binds neither the EEOC nor regulation parties” and is unreviewable.
That line of argument may be a strategic choice by EEOC as it attempts to establish a legal position from which it could defend similar, future guidance documents, said Jonathan Segal, partner at Duane Morris.
Aside from the harassment guidance, EEOC has also distanced itself from gender-identity discrimination lawsuits filed during the Biden administration, leaving advocacy groups to take up a portion of those cases. The agency also directed staff to halt some processing of sexual-orientation and gender-identity based discrimination claims in January, HR Dive previously reported.
While EEOC changes course on its LGBTQ+ antidiscrimination enforcement, employers should note that they could nonetheless face such claims under some state and local laws, Segal said. Jurisdictions that do not currently have gender-identity and sexual-orientation discrimination protections also may attempt to address this through legislation, he added.
Segal noted that congressional lawmakers reintroduced the Equality Act last month; “I think you’re going to see similar things under state and local law,” he said.
