Yesterday, EEOC chair Charlotte Burrows posted a guidance document purporting to apply the Supreme Court’s decision in Bostock v. Clayton County. That decision redefined Title VII’s prohibition of discrimination because of sex to include sexual orientation and transgender status in certain contexts.
Burrows issued this guidance document unilaterally. She had to, because left-liberals are a minority among EEOC commissioners.
Keith Sonderling, one of the non-lefty commissioners, points out that the guidance document was issued in violation of the EEOC’s own regulations. It was issued without public input, without formal public deliberation among the Commissioners, and without a vote of the Commission.
The guidance goes beyond the holding in Bostock, presuming to create new law and policy by fiat rather than through the transparent process mandated by law. As Andrea Lucas, another of the non-lefty commissioners, explains:
The Supreme Court in Bostock addressed only the question of whether an employer who fires an individual for being homosexual or transgender has discriminated against that individual “because of such individual’s sex. . . .”
However, 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. 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. . . .
Chief among [Burrows’] mistakes is the idea that Bostock ruled on the amorphous, infinitely multiplying concept of gender identity. It didn’t.
Bostock presumed sex is binary and biological and said employee-dismissal prohibitions in Title VII applied to “transgender status,” meaning a person who identifies as the opposite of one’s biological sex of either male or female. Bostock made no mention of the many gender identities now in vogue including genderfluid, agender, genderq***r, two-spirit, third gender, or any other purported combination of male and female, or lack thereof.
The decision certainly did not hold that failure to use a person’s preferred pronouns (such as hir, zie, or they) constitutes harassment, but the guidance acts as if it did.
Perhaps most troubling, as Commissioner Lucas points out, the guidance seeks to prohibit employers from having dress codes, and shared bathroom, locker, and shower policies based on biological sex (what the guidance calls sex “assigned” at birth) as opposed to subjective gender identity. The guidance takes the startlingly unscientific proposition that a person’s sex is ultimately what a person declares it to be, regardless of DNA, birth certificates, or presence or absence of reproductive organs. If employers and employees fail to conform to this new edict, they now risk the EEOC’s wrath.
The new guidance document won’t have any influence on courts. Any judge who “follows” a guidance document like this one, produced in violation of the Commission’s regs, would have ruled in favor of the radical LGBT agenda on his or her own, without need for the EEOC’s guidance.
However, the document may induce some employers to take measures they otherwise wouldn’t have to avoid litigation. I would note, though, that many employers — governmental and corporate — are sufficiently “woke” to take such measures without the encouragement of the EEOC chair.
For me, the question is whether sane employers will be cowed by the EEOC chair’s guidance. I imagine some will be, but some won’t.
Thus, the issues addressed in the guidance are likely to end up in court before long. Once there, as I said, the guidance document will be meaningless.