EEOC-Initiated Litigation - 2023 Edition

34 | EEOC-INITIATED LITIGATION: 2023 EDITION ©2023 Seyfarth Shaw LLP as a false distinction, citing to a line of Supreme Court and other precedent that “routinely melds” a person’s sexual attraction or identification with such correlated conduct, and arguing that status and conduct are “inextricably intertwined.” 41 The court sided with Texas, pointing again to the specific language used by Justice Gorsuch in the majority Bostock decision: “Justice Gorsuch repeatedly pairs the status ‘being’ with the words ‘attraction’ (homosexual) and ‘identification’ (transgender).” 42 The court also distinguished the cases cited by the EEOC as either irrelevant, overstated, or inapposite. And the court also distinguished the EEOC’s own precedent on such matters, holding that the EEOC’s quasi-judicial role over federal-sector appeals is completely irrelevant to the private sector.43 The court ultimately held that the EEOC’s guidance violated provisions of the Administrative Procedures Act and Title VII because, among other things, they promulgated substantive rules without following the notice-and-comment rulemaking requirements applicable to such rules.44 Similarly, in Christian Employers Alliance v. EEOC,45 a Christian membership ministry brought suit on behalf of its member Christian organizations to contest the implementation of the same provisions of the Affordable Care Act challenged in the Texas lawsuit. The ministry’s Ethical Convictions state that “male and female are immutable realities defined by biological sex and gender reassignment is contrary to Christian Values.” 46 It argued that the statutory interpretations advanced in the wake of the Bostock decision by the EEOC, the Department of Health and Human Services, and the Office of Civil Rights of that Department required its members to provide health insurance coverage for gender transitions services and other gender-affirming healthcare in a manner that would violate their religious beliefs. The ministry sought, among other things, a preliminary injunction to block the enforcement of those provisions against its members. The court applied the usual preliminary injunction factors. It first held that application of the government agencies’ statutory interpretations would irreparably harm the ministry’s members, holding that this factor weighed strongly in favor of an injunction: “Violating the Alliance’s statutory rights under RFRA is an irreparable harm, comparable to those of First Amendment rights. Additionally, the Alliance’s members will be compelled to speak in a certain manner or face harassment from these agencies in the form of enforcement proceedings or loss of funding.” 47 The court also found that the balance of harms weighed in favor of an injunction, holding that the harm to the government agencies was “minimal at best.” 48 The court also found a likelihood of success on the merits, noting that “Religious freedom cannot be encumbered on a case-by-case basis. ‘To satisfy the commands of the First Amendment, a law restrictive of religious practice must advance ‘interests of the highest order’ and must be narrowly tailored in pursuit of those interests.’” 49 Finally, the court held that an injunction would be in the public interest because it was always in the public interest to protect constitutional rights: “Religious freedoms are at the heart of this case. It is in the public interest to ensure these rights are not violated.” 50 The potential conflict between Bostock and the RFRA was also discussed in another recent decision, Bear Creek Bible Church v. EEOC.51 The plaintiffs in that case were a nondenominational Christian Church and a for-profit Christian institution who argued that they were protected from complying with LGBTQ antidiscrimination provisions due to their sincerely held religious beliefs. The court first held that the church 41 Id. at *5. 42 Id. at *6 (quoting Bostock, 140 S. Ct. at 1737-38, 1741-49, 1753-54). 43 This was a particularly interesting swipe at the EEOC, given that the EEOC had long relied on its own precedent in federal court pleadings to advance the cause of LGBT rights years before the Bostock decision was delivered. (The EEOC has a quasi-judicial role hearing and deciding appeals for federal sector employees.) But It is noteworthy that the court did not invalidate the EEOC’s June 15 guidance as arbitrary and capricious on this basis, holding that its reliance on its own past decisions was not “outside the zone of reasonableness,” as contemplated by the Administrative Procedures Act. Id. at *9 (quoting F.C.C. v. Prometheus Radio Project, 141 S. Ct. 1150, 1160 (2021)). 44 Id. at 12-13. 45 Christian Employers Alliance v. EEOC, No. 1:21-cv-195, 2022 WL 1573689 (D.N.D. May 16, 2022). 46 Id. at *1 (internal citations omitted). 47 Id. at *7 (internal citations omitted). 48 Id. 49 Id. (quoting Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 546 (1993)). 50 Id. 51 Bear Creek Bible Church v. EEOC, No. 4:18-CV-00824, 2021 WL 5449038 (N.D. Tex. Nov. 22, 2021).