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:

  1. Protections Against Employment Discrimination Based on Sexual Orientation or Gender Identity” ; and
  2. 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.’

‘Under the guise and cover of Bostock, the Chair purports to extend to private 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,’ ‘Lucas said in an email.’ ‘This sleight of hand is inexplicable when juxtaposed with the Court’s decision in Bostock, including its express statements that its decision did not concern, much less resolve, some of these critical issues.’

‘Republican Commissioners Keith Sonderling and Janet Dhillon also said the guidance goes beyond the purview of Bostock. It’s ‘presuming to create new law and policy by fiat rather than through the transparent process mandated by law,’ according to Sonderling’s emailed statement.’

‘The EEOC confirmed that the full panel didn’t vote on the guidance before its publication.’

‘It is routine for the Commission to issue technical assistance documents, without the need for a Commission vote, that explain and apply previously-adopted Commission positions and explain the application of current legal guidance to common factual scenarios,’ an agency spokesperson said in an email.

Giving meaning to EEOC Commissioner Lucas’ statement to Bloomberg News, the EEOC Fact Sheets cited as support for the EEOC’s substantive position which the authors took on “the bathroom issues” (a) two decisions (Macy and Lusardi) the full Commission had decided before the SCOTUS’ June 15, 2020 Bostock decision, and (b) the Bostock opinion itself. At the time the Commission published its March 27, 2015 Lusardi v. McHugh decision, we wrote it up in our May 9, 2016 story titled “EEOC” Doubles Down” In Transgender Bathroom Debate With New Factsheet.” (Yes, yet another Fact Sheet and not a Commission policy vote).  See also our earlier Week in Review story re OFCCP’s position on the “bathroom issues” titled“October 30, 2015: OFCCP Director Pat Shiu Says Federal Contractors Must Allow Biological Male Transgender Employees Transitioning To a Woman To Use The Contractor’s All Female Bathroom.” The EEOC’s April 20, 2012 appeal decision in Macy v. Holder, which the Commission also cites in its Fact Sheet to support its “bathroom issues” position, is here. (The Macy decision is an administrative appeal seeking protection of gender identity pursuant to Title VII’s protections afforded to federal employees against “sex” discrimination under their portion of Title VII.)

It was these two federal sector decisions the Commission issued to establish that the Fact Sheets were merely reiterating previously-adopted EEOC positions while sitting as a court of last resort presiding over appeals of federal employee Title VII complaints. However, these federal sector decisions are not precedential nor applicable to the private sector, nor does Title VII charge the Commission with jurisdiction over Title VII private sector litigation.

As to EEOC Commissioner Lucas’ claim that the Bostock decision did not address the “bathroom issues,” the Bostock decision had this to say: “Under Title VII, too, we do not purport to address bathrooms, locker rooms, or anything else of the kind.” See p.1753 of the SCOTUS opinion.

What is a Title VII-Covered Employer to Believe and Do? Seek advice of counsel. Until the federal Courts resolve the “bathroom issues,” legal uncertainty prevails. And, given the “food fight” between the EEOC Commissioners sparring over these issues, these are obviously controversial “hot button” issues.

What’s Really Going on Here? Apart from the bathroom access issue spat between the Commissioners, the central issue which makes this story newsworthy is that control of EEOC policy is at play. The three Republican Commissioners, which comprise the majority of the five-member Commission [until at least July 1, 2022…when (Republican) Commissioner Dhillon’s term will end (if not replaced)] believe that all EEOC policy and “technical assistance” documents must proceed to a vote of the full Commission. The two Democrat Commissioners assert that the Chair’s authority to “administer” the Commission allows her to issue Fact Sheets, among other things, without a Commission vote.

The Commission’s authority is set out in Title VII of the 1964 Civil Rights Act itself. Here is (first) the language Chair Burrows would rely upon to support her position that she is solely responsible for the “administrative” operations of the Commission and that “Fact Sheets” are operational issues which need NOT undergo a vote of a properly convened quorum of the Commission.

“The President shall designate one member to serve as Chairman of the Commission, and one member to serve as Vice Chairman. The Chairman shall be responsible on behalf of the Commission for the administrative operations of the Commission,” (emphasis added. Masculine reference to Chairman, in original) See SEC. 2000e-4(a). [Section 705] of Title VII [which creates the Equal Employment Opportunity Commission].

Here is the section of Title VII the Republican Commissioners rely upon for their argument that Chair Burrows has usurped her power as the Chair of the Commission in issuing the two Fact Sheets:

(g) Powers of Commission. The Commission shall have power—

(5) to make such technical studies as are appropriate to effectuate the purposes and policies of this subchapter and to make the results of such studies available to the public; …”. See SEC. 2000e-4(g)(5). [Section 705 of Title VII].

Note: The “Protections Against Employment Discrimination” Fact Sheet identifies itself as a “technical assistance document.”

So, the power struggle between Republicans and Democrats on the Commission is in full swing. The intriguing problem left is what is the remedy for an over-reaching EEOC Chair if the Republicans are correct that Chair Burrows has overreached? And, how does this leave employers subject to Title VII’s gender identity protections? Certainly, those employers which face an EEOC Charge and resist it will argue that the Commission’s “bathroom issues” advice is not official EEOC policy and is not something to which a reviewing federal court can even give deference, but the Commission’s own admission that its technical assistance lacks the binding force and effect of law.

The finale here will be to see whether and how the Republican Commissioners react and respond to this encroachment of the authority the Republicans believe they have as the Commission majority. Equally important will be whether Chair Burrows seeks to flex her Chair “muscles” by issuing additional policy advice in the wrapper of EEOC “Fact Sheets” disclaimed as “not binding.” The game is afoot!

John C. Fox
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