Update: Texas Federal Judge Rejects EEOC Guidance on Transgender Use of Bathrooms

In my blog post, Top Ten Tips for Transgender Employees, I cite guidance issued by the Equal Employment Opportunity Commission (EEOC) instructing employers to allow employees to use bathrooms consistent with the individual employee’s gender identity, whether or not that employee has undergone gender-confirming medical treatment. On October 1, 2022, a federal judge in Texas decided the EEOC went too far.

Court Establishes “Correlated Conduct” Distinction for Common LGBTQ Choices

In State of Texas v. EEOC, the judge found the EEOC improperly applied the Supreme Court’s ruling that federal employment law prohibits discrimination based on sexual orientation and transgender status (Bostock v. Clayton County, 2020). Particularly, the judge ruled that the Bostock decision prohibits discrimination based on being LGBTQ, but does not prohibit discrimination based on conduct “correlated” with being LGBTQ. This “correlated conduct” may include using pronouns and/or bathrooms that don’t correspond with the gender assigned at birth.

Litigation Continues to Clarify Bostock Protections

Surely, this is not last word on Bostock’s protections of LGBTQ employees. The EEOC is currently defending its post-Bostock guidance in a lawsuit from a coalition of 20 states. The lawsuit alleges the EEOC “unreasonably interpret[ed] federal antidiscrimination laws.”

The shift may feel bleak for LGBTQ employees who celebrated the changes brought by Bostock just two years ago. But keep in mind, the issues are still being litigated – in other words, the dust is far from settled.

LGBTQ Workers Have Protected Workplace Rights

In the meantime, remember federal law does prohibit discrimination in the workplace based on LGBTQ status. If you feel your colleagues, customers, supervisors, or company policies single you out because of your gender identity, gender presentation, or, sexual orientation, call Hawks Quindel to speak with a qualified attorney who can help you understand your options.

 

Hayley Archer

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