June 18, 2021
Equal Employment Opportunity Commission Chair Charlotte A. Burrows issued guidance stating employers cannot bar workers from bathrooms or locker rooms that correspond to their gender identity, referencing the Supreme Court’s decision last year in Bostock v. Clayton County. The guidance was issued without seeking a vote by the full Commission, which has a Republican majority until August 2022.
In Bostock v. Clayton County, the Court ruled that Title VII workplace discrimination prohibitions extend to sexual orientation and transgender status. Although the new guidance states that its stance on bathroom policies “is not new policy,” it nevertheless links the stance to the Bostock decision, even though the Supreme Court in that case deliberately declined to address whether employers can segregate bathrooms by sexual orientation.
Chair Burrows' guidance is most notable for the way it was issued—without a full Committee vote. The unilateral issuance appears to be an attempt to use the Bostock decision to reintroduce previous pre-Trump and pre-Biden era EEOC positions without consultation and the support of the full Commission.
“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,” said an agency spokesperson.
Republican Commissioner Andrea Lucas criticized Chair Burrows for bypassing normal procedures for issuing guidance and instead issuing it unilaterally over the objections of Republican Commissioners. “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. The 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,” said Commissioner Lucas.
Outlook: Chair Burrows’ choice to move forward unilaterally raises questions about what other policy areas she might address without going through traditional voting procedures, particularly considering that the Commission has a Republican majority through August of 2022. Further, it is unclear what legal effect such “technical assistance documents,” as an agency spokesperson referred to them, will have for employers, raising the possibility of legal challenges in the future.