Seyfarth Synopsis: On June 15, 2023, the EEOC issued a message from its Chair, Charlotte A. Burrows, for Pride Month that, among other things, highlighted the continuing impact of the Supreme Court’s seminal decision in Bostock v. Clayton County. Bostock held that discrimination on the bases of sexual preference or gender identity are prohibited by Title VII as forms of sex discrimination. This decision promises to have a significant and lasting impact on American workplaces. Chair Burrows’s message leaves little doubt that the EEOC intends to play a significant role in shaping that impact.
On Thursday, June 15, 2023, the EEOC put out a message from its Chair, Charlotte A. Burrows, for Pride Month. The message hailed the importance of the Supreme Court’s recent landmark decision in Bostock v. Clayton County, which held that discrimination on the bases of gender identity or sexual orientation are forms of gender discrimination. The EEOC also highlighted its own role in bringing about that result, linking to a graphic that shows, among other things, the history of its fight for LGBTQ+ rights in the courts. But perhaps the most interesting aspect of the announcement is what it portends about the impact of Bostock into the future.
Bostock is certain to cast a long shadow on the American workplace. Although the basic fact of Title VII’s prohibition of discrimination on the basis of sexual preference and gender identity has been settled, many other questions are left open and unresolved. In a slightly different context, a federal court in Texas described the issue this way: “is the non-discrimination holding in Bostock cabined to ‘homosexuality and transgender status’ or does it extend to correlated conduct—specifically, the sex-specific: (1) dress; (2) bathroom; (3) pronoun; and (4) healthcare practices typical of the LGBTQ community”? Texas v. EEOC, No. 2:21-cv-194-Z, 2022 WL 4835346, at *2 (N.D. Tex. Oct. 1, 2022). That court held that Bostock had not reached those issues.
EEOC Chair Burrows’s Pride Month message leaves little doubt that the EEOC wants—and will have—a seat at the table in determining the outcome of those issues as well. The message notes that the EEOC recently filed four lawsuits “seeking relief for individuals who were discriminated against because of their sexual orientation or gender identity.” One of those lawsuits, for example, seeks relief on behalf of a transgender man who allegedly suffered severe harassment, including “repeated and intentional use of female pronouns when addressing him.” In fact, each of the four lawsuits highlighted by Burrows are premised on a theory of harassment. In many ways, that theory of discrimination cuts straight to the heart of the matter: In the post-Bostock world, what types of speech and conduct are now out of bounds in the American workplace? These and other similar issues are set to be resolved in the coming years through the long process of litigation as these types of cases wind their way through the courts.
In the meantime, the EEOC has other means at its disposal to shape these issues. Burrows’s message also notes that, in addition to using its enforcement authority, the EEOC also “remain[s] committed to robust education and outreach about the Bostock decision.” The message mentions that the EEOC hosted nearly 350 outreach events during the last fiscal year to “educate workers and employers about Bostock and promising practices to promote safe, inclusive, and respectful work environments.” Those educational events do not carry the force of law, but they may point in the direction the EEOC wants these issues to go, and where it will strive to take the country using the power of its enforcement authority.
Implications For Employers The full scope of the impact of Bostock is just beginning to be felt. Many of the issues raised by that decision will be decided by the courts only after years of protracted litigation, meaning it will take time for the full scope of their impact to reveal itself. To make matters worse, the federal judiciary is likely as divided on these issues as the American workforce is. This is amply demonstrated by the decision in Texas v. EEOC. The judge who decided that case is a recent Trump appointee, who has already garnered quite a reputation for issuing conservative and occasionally controversial rulings. One can already see the seeds of circuit splits being planted. Employers will have no choice but to monitor these trends closely and be prepared to adapt quickly. As the prevailing view unfolds over time, employers will likely be called upon often to change their policies and practices in response to frequent changes in the law.