EEOC Harassment Guidance Ripe for Suits Over LGBTQ+ Protections

The EEOC’s first update to its harassment guidance in a quarter century gives the document greater relevance in today’s workplace well as a higher chance of a lawsuit from conservative-leaning challengers.

The guidance finalized April 29 reinforces LGBTQ+ employee rights like allowing the use of bathrooms that fit a worker’s gender identity and protection from misgendering, in addition to outlining how employers can tackle harassment that occurs in the virtual workplace and through social media.

This marks the EEOC’s second recent attempt, following a failed effort in 2017, to establish new anti-harassment guidelines for employers, which haven’t been updated since 1999. The new revisions to the guidance clarify and compile standards and case law that have come out on issues related to harassment in an effort by the commission to catch up with the times.

“A lot has changed over 25 years,” said Sharon Masling, a management-side attorney at Morgan, Lewis & Bockius LLP who served as chief of staff to former Democratic EEOC Commissioner Chai Feldblum.

But bringing harassment guidance that’s relevant in 2024 means it must withstand current political and legal headwinds, particularly around issues like LGBTQ+ rights and gender identity.

The guidance also deals with hot-button topics like abortion and diversity, equity, and inclusion.

“I would not be surprised if the harassment guidance gets caught up in some of these same challenges,” Masling said.

‘Still a Rule’

The guidance says repeated and intentional use of a name or pronoun inconsistent with an individual’s known gender identity or denial of an employee’s ability to use a bathroom or sex-segregated facility consistent with their gender would entail sex-based harassment under Title VII of the 1964 Civil Rights Act.

Soon after the final guidance was made public, Andrea Lucas, a Republican commissioner, released a statement criticizing the commission for its “attack” on women’s sex-based rights, as well as freedoms of speech and belief.

She also wrote that the commission’s disclaimer in the guidance that it is non-binding, unlike a rule, isn’t convincing.

“As I noted in my statement, a rule by any other name is still a rule,” Lucas told Bloomberg Law in an interview. “This document clearly is intended to result in employer policy and behavior changes and that is consistent with how a rule acts.”

“The commission was not given the power by Congress to enact substantive regulation in Title VII,” she said. “But this is, I think, an attempt to evade that restriction.”

The argument that the EEOC miscast rules as guidance has helped the state of Texas successfully challenge at least two commission initiatives in court.

A judge in the US District Court for the Northern District of Texas in 2022 cited the issue in vacating EEOC guidance on workplace bathrooms, dress codes, and locker rooms for LGBTQ+ workers. The US Court of Appeals for the Fifth Circuit also blocked commission guidance on criminal background checks from applying to Texas partly on the grounds that it comprised a “substantive rule” that the commission could not promulgate under Title VII.

The latest guidance might also be impacted down the line if the US Supreme Court decides to gut or weaken Chevron deference, according to Adam Herzog, an employee-side attorney at Katz Banks Kumin LLP.

The longstanding legal doctrine requires courts to defer to federal agencies’ reasonable interpretations of ambiguous statutes. Though deference to agency guidance is covered by different legal standards than deference to rules, that standard could also be at risk in a post-Chevron world, Herzog said.

“Even if that’s the case, we all, certainly those who represent employees, we’re all still thrilled to have this new guidance because we think there’s just a value with putting it out, recognizing that these are real issues that people deal with, like the social media or gender issues,” he said.

Other Objections

The harassment guidance is likely to be challenged by those who object on religious grounds to using the pronouns another worker uses to fit that employee’s gender identity, labor and employment attorneys say.

The EEOC in the guidance cites the US Supreme Court’s June 2020 decision in Bostock v. Clayton County , which held that Title VII’s prohibition on sex discrimination extends to bias based on sexual orientation and gender identity.

A footnote in the guidance said “the Supreme Court’s reasoning in the decision about the nature of discrimination based on sex logically extends to claims of harassment,” and that courts have found post-Bostock that harassment claims based on sexual orientation or gender identity fall under Title VII.

“As compared to 2017, the guidance now is grounded in Supreme Court case law that did not exist in 2017,” Masling said. “So I think it is harder to argue with the EEOC’s interpretations that are grounded in Supreme Court case law and other cases before the court. Most of the examples that the EEOC used are based on court decisions.”

Red state attorneys general have already disagreed with the EEOC’s Bostock interpretation in a comment letter on the proposed harassment guidance that said they are prepared to bring legal action if significant changes were not made in the final version. Bostock “narrowly held” that firing an employee for being transgender violates Title VII, but didn’t address sex-segregated bathroom facilities or the “pure speech” issue of pronoun usage at work, the letter said.

A similar attorney general coalition sued the EEOC April 25 challenging its stance on abortion in its Pregnant Workers Fairness Act rules.

The EEOC also acknowledged in its guidance that enforcement of anti-harassment statutes could implicate other federal laws, such as the Religious Freedom Restoration Act of 1993, which prohibits the government from “substantially burdening” a person’s religious freedom.

Adam Pulver, an administrative law attorney at Public Citizen Litigation Group, said he anticipates there will be litigation based on First Amendment and RFRA concerns surrounding the guidance.

He said employers may argue that using the pronouns of a person’s choice or permitting them to use the bathroom that aligns with their gender identity might spark religious objections.

In its 2023 decision in Braidwood Management, Inc. v. Equal Employment Opportunity Commission , the Fifth Circuit said religious employers are exempt from Title VII requirements on sexual orientation and gender identity discrimination if there’s “substantial burden” on the employer’s religious beliefs.

In Braidwood, a Christian-owned management company filed a class action against the EEOC arguing that the application of Title VII’s prohibitions against sex discrimination to sexual orientation and gender identity violates the First Amendment and RFRA.

The Fifth Circuit held that the company was exempt from Title VII requirements under Bostock because of the burden on the employer’s religious beliefs, but didn’t rule on whether the EEOC’s application of Title VII broadly violates these laws.

“One interesting wrinkle about that is that decision by the Fifth Circuit, which was not a nationwide injunction, only prohibited the enforcement of Title VII against the individual employer who sued there,” Pulver said.

“But certainly the guidance would kind of fall away, it has no impact in those situations related to sexual orientation or gender identity, because the Fifth Circuit has already said that RFRA provides an exemption to these entities from enforcement of Title VII on these grounds by the EEOC,” he said.