In August, the U.S. Supreme Court upheld an injunction to the Department of Education’s recently issued rule implementing Title IX of the Education Amendments of 1972. Title IX prohibits sex-based discrimination in any school or any other education program that receives funding from the federal government. This order—coupled with its decision overruling Chevron deference—signals the Court may soon invalidate some of the Equal Employment Opportunity Commission’s (EEOC) harassment guidelines under Title VII of the Civil Rights Act of 1964 as they relate to sexual orientation and gender identity.
In late April 2024, the EEOC issued new guidelines explaining that discrimination based on sexual orientation or gender identity is a form of unlawful sex-based discrimination under Title VII, including epithets, physical assault, “outing” (disclosing an individual’s sexual orientation or gender identity without permission), or other harassing conduct toward individuals because they do “not present in a manner that would stereotypically be associated with that person’s sex.”
The guidelines state that the “repeated and intentional use of a name or pronoun inconsistent with the individual’s known gender identity (misgendering); or the denial of access to a bathroom or other sex-segregated facility consistent with the individual’s gender identity” may be considered illegal harassment under Title VII.
The Department of Education recently issued a new rule implementing Title IX of the Education Amendments of 1972. The rule newly defined sex discrimination to “includ[e] discrimination on the basis of sex stereotypes, sex characteristics, pregnancy or related conditions, sexual orientation, and gender identity.”
Several states and other parties sought preliminary injunctions against the new rule, arguing among other things that it exceeded the bounds of the statutory text enacted by Congress. District courts in Louisiana and Kentucky agreed and preliminarily enjoined enforcement of the rule in those states. The U.S. Courts of Appeals for the 5th and 6th Circuits then declined to stay (halt) the injunctions in the interim period.
The federal government filed emergency applications in the Supreme Court seeking partial stays of the preliminary injunctions pending resolution of the appeals in the 5th and 6th Circuits. The Supreme Court denied the government’s applications to stay the injunction, meaning the new Title IX rule on sexual orientation and gender identity is currently unenforceable.
Given the similarities between the Title IX rule and the EEOC guidelines, it appears quite possible that the Supreme Court will reject the EEOC’s position that Title VII prohibits discrimination based on sexual orientation or gender identity. This recent order—coupled with the overruling of the Chevron case that provided deference to administrative agencies—strongly suggests that federal courts may give little to no deference in the future to the EEOC guidelines. Department of Education, et al. v. Louisiana, et al., 603 U.S. ____ (2024).
Sexual orientation and now gender identity have provided the basis for discrimination claims for decades. Some states, like Wisconsin, specifically outlaw sexual orientation discrimination. It appears likely that the Supreme Court will take an explicitly narrow view of Title VII and find it doesn’t prohibit discrimination or harassment based on sexual orientation or gender identity.
Whether the Supreme Court invalidates the EEOC’s guidelines on sexual orientation or gender identity, you must still be mindful of state and local laws that may prohibit such discrimination. Discrimination and harassment in the workplace are never a good thing for a healthy work environment. Regardless of how the Supreme Court ultimately decides on the enforceability of EEOC guidelines, you are free to implement your own policies to prohibit such discrimination and harassment.
Saul Glazer is a partner with Axley Brynelson, LLP, in Madison, Wisconsin. He can be reached at sglazer@axley.com.
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