Friday, July 15, 2022: Federal District Court Judge In Tennessee Blocked Enforcement Of Controversial EEOC & DOE Guidance Documents On Bostock
A federal district court in Tennessee issued a preliminary injunction barring the Equal Employment Opportunity Commission (EEOC) and the Department of Education (DOE) from enforcing four guidances issued in response to President Biden’s Executive Order (E.O.) 13988. That E.O. sought to enforce the U.S. Supreme Court’s holding in Bostock v. Clayton County, 140 S. Ct. 1731 (2020). The district court’s ruling in Tennessee v U.S. Dept of Educ., (E.D. Tenn., Case No. 3:21-cv-308) sided with 20 states in finding that the federal documents at issue were substantively and procedurally deficient under the Administrative Procedure Act (APA). We previously discussed the states’ assertions in this suit at: Twenty States File Suit to Strike Down EEOC Technical Assistance Documents Regarding Disputed Sexual Orientation and Gender Identity Protections.
A preliminary injunction is a common tool allowed under federal court procedural rules in which a court “enjoins” (i.e., stops) some action from happening for a stated period. The preliminary injunction here will remain in effect pending the final resolution of this matter, or until further orders from this Court, the United States Court of Appeals for the Sixth Circuit (Cincinnati), or the Supreme Court of the United States.
The district court’s preliminary injunction covers the following documents:
The EEOC document notes that:
- prohibiting a transgender person from dressing or presenting in appearance consistent with the person’s gender identity is discriminatory under Title VII;
- employers may not deny an employee equal access to a bathroom, locker room, or shower that corresponds to the employee’s gender identity;
- intentional or repeated use of the wrong name and pronouns in reference to a transgender employee would create a hostile work environment that is discriminatory based on gender identity; and
- an employer may not use a customer or client’s preferences as justification for discriminatory action against employees who have a different sexual orientation or gender identity.
In addition to the EEOC and DOE, the defendants in the lawsuit include the Department of Justice (DOJ) and the heads of all other federal Executive Branch agencies. The states joining Tennessee in the action include Alabama, Alaska, Arizona, Arkansas, Georgia, Idaho, Indiana, Kansas, Kentucky, Louisiana, Mississippi, Montana, Nebraska, Ohio, Oklahoma, South Carolina, South Dakota, and West Virginia.
Recognizing the conflict between state and federal requirements, the court held the states had standing to pursue the case
As an initial matter, Trump Appointee Charles E. Atchley Jr. of the U.S. District Court for the Eastern District of Tennessee held that the plaintiff states had standing to bring the case. Ten of the plaintiff states identified a plausible conflict between their state laws and the federal guidance documents at issue as to certain conduct related to sexual orientation and gender identity. “[B]ecause Plaintiffs are subject to Titles VII and IX, and are thus objects of the guidance, Defendants’ guidance directly interferes with and threatens Plaintiff States’ ability to continue enforcing their state laws,” the court pointed out. Moreover, a federal enforcement action puts the plaintiff states at risk of losing substantial federal funding.
The action was also ripe for court review. Even though there were no current federal enforcement actions at issue, agency action under the APA is presumptively reviewable, Judge Atchley noted. The challenged federal documents constituted final agency actions making the case ripe for review, he concluded. Here, the plaintiff states were already suffering the alleged harm to their sovereign power to enforce their own legal code, and they “face substantial pressure to change their state laws as a result.”
“The District Court rightly recognized the federal government put Tennessee and other states in an impossible situation: choose between the threat of legal consequences including the withholding of federal funding or altering our state laws to comply,” Texas Attorney General Herbert H. Slatery III said in a statement.
The federal guidance documents went beyond the parameters of Bostock, the court found
The agencies argued that the documents at issue constituted only “Interpretive Rules,” rather than “Legislative Rules” (which have the binding force and effect of law, as though the Congress had issued a statute). When issuing a Legislative Rule, an agency must publish a notice about the proposed Rule, allow the public to comment on the Rule, and, after considering the comments, make any appropriate changes and include them in the Final Rule, the court explained.
In the “Protections Against Employment Discrimination Based on Sexual Orientation or Gender Identity” guidance, the EEOC maintains that:
“This information is not new policy. This publication in itself does not have the force and effect of law and is not meant to bind the public in any way. It is intended only to provide clarity to the public regarding existing requirements under the law.”
Yet the court saw it differently. Judge Atchley found the EEOC and DOE guidances at issue were Legislative Rules that create new rights and obligations because they “ignore the limited reach of Bostock.” In that decision, the Supreme Court only held that Title VII prohibits an employer from firing someone simply for being homosexual or transgender, Atchley wrote, adding that the Court expressly declined to address other issues that might be implicated by Title VII, such as “sex-segregated bathrooms, locker rooms, and dress codes.”
While the EEOC’s “Protections Against Employment Discrimination Based on Sexual Orientation or Gender Identity” document recognizes that Bostock “explicitly reserved some issues for future cases,” it, nevertheless, went beyond the parameters of Bostock to address other issues, the judge found. “The EEOC’s guidance identifies and creates rights for applicants and employees that have not been established by federal law, and it directs employers to comply with those obligations to avoid liability,” Judge Atchley concluded.
The DOE documents also conflicted with Title IX and its implementing regulations; the court found. Title IX expressly permits sex-separated living facilities and athletic teams, and “the Department’s guidance, specifically the Fact Sheet, appears to suggest [sex-separation in those circumstances] will be investigated as unlawful discrimination,” the judge wrote.
The agencies did not follow the APA’s notice and comment period requirements for Legislative Rules
As the documents at issue constituted Legislative Rules, they are subject to the APA’s procedural requirements, the district court concluded. Because the agencies did not follow any of the APA’s public notice and comment Rulemaking formalities, the documents at issue cannot be legally binding. Indeed, the federal agencies did not contend that they complied with the APA’s notice and comment requirements. Therefore, the court reasoned that “the public would benefit from a preliminary injunction. An injunction will ensure that the agencies are not exceeding their express authority delegated by Congress.”
It is important to note the date of the at-issue guidances: June 2021. Publication of all four guidances preceded the White House’s realization during the subsequent lawsuits challenging the Biden Administration’s numerous COVID-19 vaccination mandates that the President was not above the law, could not just lean out the window of the Oval office and shout instructions, and had to comply with the APA’s Rulemaking process when it wanted to impact the substantive rights of the regulated public. Wisdom late is better than wisdom never.
Republican Commissioners objected to the guidance and related documents at the time they were published on the EEOC’s website
We reported on the dispute between EEOC Commissioners at the time that the “Protections Against Employment Discrimination Based on Sexual Orientation or Gender Identity” guidance and related documents were published on the agency’s website.
The dispute arose because the Republican EEOC Commissioners at the time – Andrea R. Lucas, Keith E. Sonderling, and Janet Dhillon – maintained that the Bostock decision expressly reserved ruling on the bathroom and related issues and that the Commission has never voted on what Title VII requires of private sector employers as to these concerns. When the documents were published, the five-member bipartisan EEOC panel had a 3-2 Republican majority. However, EEOC Chair Charlotte Burrows published the documents unilaterally without a Commission vote. [Note: In April, President Biden nominated attorney Kalpana Kotagal to replace Janet Dhillon, whose term on the Commission expired on July 1, 2022. This nomination is still pending in the Senate and Commissioner Dhillon (formerly Chair Dillon) will be able to remain on the Commission until either the end of this calendar year or the date the Senate confirms Ms. Kotagal, if it does—whichever occurs first. Should the Senate confirm Ms. Kotagal, Democrats will then have a 3-2 majority on the Commission for the first time during the Biden Administration.]
Following the district court’s ruling, Commissioner Lucas posted a statement on her LinkedIn account praising the decision. “Although [Chair Burrows’] document carries the modest name ‘technical assistance,’ it has little to do with facilitating understanding of, or adherence to, the Bostock decision,” Ms. Lucas asserted. Similar to the district court’s ruling, Commissioner Lucas pointed out that, in Bostock, the High Court “explicitly reserved [judgment] on whether other policies or practices falling short of termination constitute impermissible sex discrimination under Title VII, as well as reserved judgment on how the Religious Freedom Restoration Act of 1993 (RFRA) and other protections for religious liberty interact with Title VII.” Nevertheless, “under the guise and cover of Bostock, the Chair purported to extend to private employers (and state government employers) several (pre-Bostock) federal sector administrative decisions relating to dress codes, use of pronouns, and access to bathrooms, locker rooms, and showers—implying that compliance with Bostock requires nationwide acquiescence to the policies and interpretations in these decisions,” Ms. Lucas wrote.
“For the EEOC to have addressed these issues properly,” she continued, “the Commission should have worked together, debated, held public meetings, and, most importantly, voted on the standards it seeks to apply to the nation’s workforce in guidance, as informed by Bostock’s holding and finalized after providing stakeholders with notice and the opportunity to comment. But that did not, and has not, occurred.”
Editor’s Note: That was Commissioner Lucas’ very genteel and diplomatic way of saying on behalf of herself and her Republican Commissioner colleagues: “We told you so”!