Evan Parness’ commentary was included in a Law360 article about how finalized regulations issued by the U.S. Equal Employment Opportunity Commission governing the new Pregnant Workers Fairness Act and long-anticipated guidance for combating workplace harassment triggered lawsuits from Republican attorneys general and religious groups.
Evan states that, "we've seen in the employment law space in general over the last year whether it's at the EEOC or [other] government agencies either enacting rules or providing guidance that have created some umbrage with some of the more conservative or red state attorneys general.”
Evan proceeded to comment on a lawsuit filed by the attorneys general of Louisiana and Mississippi challenging the EEOC's regulations on the grounds that it created what they called an "unlawful abortion-accommodation mandate."
Evan said that the judge in the Louisiana cases provided more targeted relief than if he
had issued a nationwide injunction that would have blocked the EEOC's regulations more broadly.
"I would expect this to work its way up through the appellate courts, potentially something the Supreme Court may decide that it has to get involved in," Evan said, noting that it involves questions of federalism and arguments about whether the so-called major questions doctrine applies.
"I think the states have kind of thrown the kitchen sink at this," Evan added. "I think, from the EEOC's perspective, they're taking the view that … whether or not [abortion] is a related medical condition [is something] an employer can figure out on a case-by-case basis with an employee. So, I think we'll wait and see how things progress."
Further, Evan provides his take on Texas filing a motion asking U.S. District Judge Matthew Kacsmaryk of the Northern District of Texas to vacate the EEOC's guidance updating the agency's blueprint for eradicating harassment in the workplace. It also asked the court to
issue a permanent injunction blocking the agency from interpreting Title VII to mean that employers must make accommodations for bathroom access, pronoun usage, and dress codes to avoid gender identity discrimination claims. Texas’ request is in light of the Supreme Court's 2020 decision in Bostock v. Clayton County, Georgia, in which the justices held that Title VII's ban on sex discrimination bars employers from firing workers based on their sexual orientation or gender identity.
According to Evan, “the EEOC can argue that it took the prior ruling into account when it issued its guidance, with the agency having included citations to new court precedent and making it clear that it isn’t prejudging any sexual orientation-or gender identity-related charged.” He continues, stating, “From my viewpoint—we’ll see, obviously, what the Texas court…[does]—but I think this one is a little bit easier for the courts to dispose of on the grounds that this is just guidance, it’s not binding. I think the EEOC in one of their court papers said…’It’s nonbinding guidance,’ and that in their mind…is just a straightforward recitation of the law in light of Bostock and as has been applied by federal district and appellate courts across the country. So…time will tell.”
Finally, Evan shares his thoughts about a coalition of 18 Republican attorneys general led by Tennessee lodging a lawsuit seeking to strike the guidance down for allegedly stretching Bostock too far. Specifically, the states took issue with the EEOC's advice that employers must use workers' preferred pronouns, allow transgender workers to use restrooms that correspond with their gender identity, and refrain from enforcing dress codes that require workers to dress in a way that corresponds to their biological sex to avoid running afoul of Title VII.
Regardless of the outcome of the states' various lawsuits, Evan said employers should strive to make sure no one in a protected class faces discrimination or harassment.
"Our guidance to employers is the Supreme Court spoke pretty clearly in Bostock that discriminating against somebody based on their sexual orientation or gender identity is discrimination based on sex, which is protected by Title VII," Evan said. "And I think it is a natural extension that that would include harassment, which is also prohibited by Title VII."
"But, I think as the EEOC guidance makes clear, not every employee's allegation of harassment necessarily gives rise to a Title VII claim," Evan added. "So, I think employers should continue to be prudent and conduct investigations or other reviews when these types of concerns are brought to their attention and handle it in accordance with not just Title VII but … state or local laws as well."
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