Republican Attorneys General Sue EEOC Over New Harassment Guidance

A group of 18 Republican state attorneys general filed a lawsuit against the Equal Employment Opportunity Commission over the Commission’s newly released harassment guidance, alleging that it goes beyond the scope of federal anti-discrimination law and the authority of the Commission.

Background: The EEOC released new harassment and discrimination guidance earlier this month. The guidance particularly focuses on Title VII protections for sexual orientation and gender identity, and workplace harassment and discrimination related to both. The EEOC released the guidance in response to the Supreme Court’s 2020 decision in Bostock v. Clayton County which affirmed that Title VII prohibits discrimination on the basis of sexual orientation and gender identity. 

The lawsuit: The Republican attorneys’ general lawsuit alleges that the Commission’s Democratic majority went beyond its statutory authority and impermissibly expanded the scope of Title VII protections based on a flawed interpretation of the Supreme Court’s decision in Bostock. "EEOC proposed essentially to amend Title VII to create a de facto accommodation for gender identity — even though Bostock did not address the accommodations context," said the complaint. The complaint also pointed to several state laws which specifically prohibit allowing members of the opposite biological sex to enter bathrooms. 

Political signaling: Particularly given that the EEOC’s guidance creates no new legal obligations for employers or other stakeholders, the lawsuit – and any potential impact of its result – is more a political ploy than anything else. Employer obligations will remain unchanged whether the guidance remains in effect or is struck down. 

What’s next: The same district court where the suit was filed nixed similar guidance issued by the EEOC in 2021. A similar outcome here is likely.