Tuesday, June 15, 2021: Dispute Breaks Out at EEOC Between Republican Commissioners and the Democrat Chair Over Whether the Chair May Issue Policy Guidance Without a Commission Vote: Control of Commission Policy at Stake…And the Transgender Bathroom Issues are Back!
What Happened First? First, at the direction of the Chair of the Equal Employment Opportunity Commission (“EEOC”), Charlotte A. Burrows, the Commission published an EEOC Press Release from the “Washington D.C. Headquarters” of the “U.S. Equal Employment Opportunity Commission” titled:
“EEOC Announces New Resources About Sexual Orientation and Gender Identity Workplace Rights”
“Federal Agency Continues Its Work in Forefront of LGBTQ+ Rights.”
The Press Release stated that the Commission was “observing LGBTQ+ Pride Month, and the (first year) anniversary of the U.S. Supreme Court ruling in Bostock v. Clayton County [140 S. Ct. 1731 (2020)], by announcing the release of new resources to educate employees, applicants and employers about the rights of all employees, including lesbian, gay, bisexual and transgender workers, to be free from sexual orientation and gender identity discrimination in employment.”
The Press Release went on to state that: “The materials include a new landing page on the EEOC website that consolidates information concerning sexual orientation and gender identity discrimination and a new technical assistance document to help the public understand the Bostock decision and established (emphasis added) EEOC positions on the laws the agency enforces.” Repeating the notion that the newly supplied EEOC materials were merely repeating established Commission policy and were not forging new policies, the Press Release went on to state:
“Neither the new landing page nor the new technical assistance document, titled “Protections Against Employment Discrimination Based on Sexual Orientation and Gender Identity” state new EEOC policy; rather, these resources rely on previously voted positions adopted by the Commission.”
The Press Release also embedded, in turn, two “Fact Sheets” published to the public tattooing them as publications from “EEOC Headquarters” “U.S. Equal Employment Opportunity Commission” and titled:
- “Protections Against Employment Discrimination Based on Sexual Orientation or Gender Identity” ; and
- “Sexual Orientation and Gender Identity (SOGI) Discrimination”
The “Protections Against Employment Discrimination” Fact Sheet carries this passive voice legend: “This technical assistance document (emphasis added) was issued upon approval of the Chair of the U.S. Equal Employment Opportunity Commission.” The Sexual Orientation” Fact Sheet carries this legend: “A Message from EEOC Chair Charlotte A. Burrows for Pride Month and the Anniversary of the Supreme Court’s Decision in Bostock v. Clayton County.”
The “Protections Against Employment Discrimination” Fact Sheet also displays this disclaimer, while the “Sexual Orientation” Fact Sheet does not: “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.”
The “Protections Against Employment Discrimination” Fact Sheet stated that it:
“…briefly explains what the Bostock decision means for LGBTQ+ workers (and all covered workers) and for employers across the country. It also explains the Equal Employment Opportunity Commission’s (EEOC or Commission) established legal positions on LGBTQ+-related matters, as voted by the Commission.” (emphasis added)
Both Fact Sheets then adopted, among other things, the highly controversial positions (which are still in litigation) that an employer’s refusal to allow an employee equal access to bathrooms, locker rooms, or showers (“the bathroom issues”) that correspond to the employee’s gender identity would constitute sex discrimination under Title VII of the Civil Rights Act of 1964.
The dispute between the Commissioners now arises because the Bostock decision expressly reserved ruling on “the bathroom issues” and the Commission has never voted on what Title VII requires of private sector employers as to “the bathroom issues.”
The Issue of Bathroom, Locker Rooms, and Shower Rooms for Men and Women, per the Fact Sheets:
“Courts have long recognized that employers may have separate bathrooms, locker rooms, and showers for men and women, or may choose to have unisex or single-use bathrooms, locker rooms, and showers. The Commission has taken the position that employers may not deny an employee equal access to a bathroom, locker room, or shower that corresponds to the employee’s gender identity. In other words, if an employer has separate bathrooms, locker rooms, or showers for men and women, all men (including transgender men) should be allowed to use the men’s facilities and all women (including transgender women) should be allowed to use the women’s facilities.” (Emphasis added) [See the “Protections Against Employment Discrimination Based on Sexual Orientation or Gender Identity” Fact Sheet at paragraph 10].
The “Sexual Orientation and Gender Identity (SOGI) Discrimination” Fact Sheet repeated this same language in its fourth bolded paragraph (“SOGI Discrimination & Employment Policies/Practices”).
What happened Next? In a nationwide exclusive, Paige Smith, a Reporter for Bloomberg News, exchanged e-mails about the Fact Sheets with the three highly animated Republican Commissioners (who constitute the majority of the Commission) and with the Chair’s Office. (The Republican EEOC Commissioners are Andrea R. Lucas, Keith E. Sonderling and Janet Dhillon) Here is Paige Smith’s/Bloomberg News’ report of those e-mail exchanges exposing a large policy riff about who controls the five Member bi-partisan Commission:
‘GOP Commissioner Andrea Lucas said the guidance was issued ‘unilaterally’ without a vote by the five-member bipartisan EEOC panel, which currently has a 3-2 Republican majority.’