TN Federal Judge Blocks EEOC Guidance on Title VII Bathroom Use and Gender Identity

 Author: Melissa Mullins, Senior Editor

In July 2022, Judge Charles Atchley Jr. of the Eastern District of Tennessee temporarily blocked U.S. Equal Employment Opportunity Commission (“EEOC”) guidance allowing transgender workers to use bathrooms coinciding with their gender identity and pronoun usage.[i] Tennessee Attorney General Herbert H. Slatery III, along with 19 of his attorneys general colleagues (all members of the Republican Party), claimed the EEOC guidance allowing transgender workers to use bathrooms corresponding with their gender identity would make it impossible for the respective states to enforce their own laws banning such behavior.[ii]  Judge Atchley also addressed the EEOC’s guidance regarding an employer’s use of pronouns or names inconsistent with an employee’s gender identity. In his opinion, Judge Atchley agreed with the Plaintiff states, asserting that these states “cannot continue regulating pursuant to their state laws while simultaneously complying with Defendants’ guidance.”[iii]

The EEOC, along with codefendant U.S. Department of Education, had established their guidance in response to the 2020 Supreme Court finding in Bostock v. Clayton County, which held that Title VII of the Civil Rights Act of 1964[iv] protects homosexual and transgender individuals from workplace discrimination.[v]  Under Bostock, employers violate Title VII if they discriminate by relying on sex based stereotypes, imposing standards on one sex and not the other for arbitrary and capricious reasons.[vi] Following this decision, Department of Education’s and EEOC extended this guidance from a Title VII case, to Title IX by employing Executive Order No. 13988, “Executive Order on Preventing and Combating Discrimination on the Basis of Gender Identity or Sexual Orientation.”[vii]  Prior to this ruling, the EEOC’s guidance stated “employers may not deny an employee equal access to a bathroom, locker room, or shower that corresponds to the employee’s gender identity.”[viii] Regarding pronoun and name use, the EEOC explained the “accidental misuse of a transgender employee’s preferred name and pronouns does not violate Title VII, [but] intentionally and repeatedly using the wrong name and pronouns to refer to a transgender employee could contribute to an unlawful hostile work environment.”[ix]

The plaintiffs challenged the legality of the EEOC guidance documents and Executive Order. Such EEOC guidance documents assist and inform the public in understanding existing EEOC positions.  Judge Atchley blocked this guidance, claiming EEOC failed to follow proper protocol where the EEOC Commissioner published the guidance without following the requirements of the Administrative Procedure Act.[x] Under this Act, “[an] agency must publish a notice about the proposed rule, allow the public to comment on the rule, and, after considering the comments, make appropriate changes and include in the final rule a ‘concise general statement’ of its contents.”[xi]  In response, the EEOC and codependents argued the guidance documents at issue dp not violate the APA.  The EEOC contends these documents “create no new legal obligations beyond those the [statute] already imposed.”[xii]  The purpose of these guidance documents is to inform the public of the agencies' interpretation of Titles VII and IX, “without purporting to alter those obligations at all.”[xiii]

This injunction, however, is temporary.  Judge Atchley noted that this will last “pending the final resolution of this matter.”[xiv]  Judge Atchley ended his ruling stating that further decisions could be made on appeal from the U.S. Court of Appeals for the Sixth Circuit or the U.S. Supreme Court.[xv]

Employees may still, however, bring suit against private employers for transgender discrimination, but these cases would be decided on a case-by-case basis and dependent on Title VII case law.[xvi]  The EEOC Commissioner still has potential recourse.  The Biden Administration may appeal this decision in the Sixth Circuit, but given the conservative jurisprudence of this Circuit, a victory is unlikely.[xvii] In the meantime, private employers should develop and consistently enforce a clear and harassment and discrimination policy in order to mitigate liability under Title VII discrimination claims.

[i] J. Edward Moreno & Robert Iafolla, LGBT battle for bathroom access, pronouns pivots to worker suits, Bloomberg Law Daily Labor Report, (July 19, 2022), https://news.bloomberglaw.com/daily-labor-report/lgbt-battle-for-bathroom-access-pronouns-pivots-to-worker-suits..

[ii] Tennessee v. U.S. Dept. of Educ., 3:21-CV-308, 2022 WL 2791450 (E.D. Tenn. July 15, 2022) (Plaintiff States consist of Tennessee, Alabama, Alaska, Arizona, Arkansas, Georgia, Idaho, Indiana, Kansas, Kentucky, Louisiana, Mississippi, Missouri, Montana, Nebraska, Ohio, Oklahoma, South Carolina, South Dakota, and West Virginia.)

[iii] Id. at *7; Brad Brooks, Judge Blocks Biden Administration's directives on transgender athletes, bathrooms, Reuters, (July 18, 2022), https://www.reuters.com/world/us/judge-blocks-biden-admin-directives-transgender-athletes-bathrooms-2022-07-16/.

[iv] 42 U.S.C. §1981. Title VII prohibits discrimination based on race, color, national origin, sex, and religion. It also forbids retaliation against employees who bring up participating claims of discrimination. Title VII generally applies to employers with 15 or more employees, excluding the United States government and its wholly owned entities.

[v] Bostock v. Clayton County, Georgia, 140 S. Ct. 1731, 1738 (2020).

[vi] Bostock, 140 S. Ct. at 1738.

[vii] Tennessee, 2022 WL 2791450.

[viii] U.S. Equal Employment Opportunity Commission, Protections Against Employment Discrimination Based on Sexual Orientation or Gender Identity, (2021), https://www.eeoc.gov/laws/guidance/protections-against-employment-discrimination-based-sexual-orientation-or-gender.. (This guidance now includes information on the injunction.)

[ix] Id.

[x] Moreno & Iafolla, supra note i.

[xi] Tennessee, 2022 WL 2791450 at *20. (quoting 5 U.S.C. § 553).

[xii] Rhea Lana, Inc. v. Dep't of Labor, 824 F.3d 1023, 1028 (D.C. Cir. 2016).

[xiii] Defendants' Opposition to Plaintiffs' Mot. for Preliminary Injunction, Tennessee, 2022 WL 2791450.

[xiv] Tennessee, 2022 WL 2791450 at *24.

[xv] Id.

[xvi] Id.

[xvii] Id.