Document Type
Article
Publication Date
11-2024
Abstract
In Bostock v. Clayton County, Georgia, the Supreme Court formally recognized that federal discrimination law prohibits discrimination based on sexual orientation and gender identity. The opinion barely mentioned the Equal Employment Opportunity Commission (EEOC), the federal agency charged with enforcing federal discrimination law. Reading Bostock, it would be easy to get the impression that the EEOC played little to no role in the outcome. This Essay reclaims and restores the EEOC's role.
In restoring the EEOC's role in this story, two themes emerge. First, Bostock's methodology erases the administrative agency tasked with enforcing Title VII in ways that are inconsistent with the authority Congress gave to the agency. This idea is important because modern conversations about administrative agencies tend to focus on Chevron deference or the elimination of such deference. This Essay demonstrates how textualism is erasing the administrative agency outside of the Chevron context. This intervention comes at a particularly important time, given the rise ofnew textualism and progressive textualism.
Second, the EEOC played an important role in developing the idea that Title VII prohibits discrimination on the basis of gender identity. This Essay demonstrates the mechanisms the agency used. It especially focuses on the EEOC's role under the federal-sector provision. Congress gave the EEOC extensive authority in this area. Even though the federal-sector provision also prohibits sex discrimination, the Supreme Court ignored the EEOC's federalsector decisions holding that sex included gender identity. Given the power Congress gave the EEOC in this area and others, it is unlikely that Congress intended for the courts to ignore the agency.
Recommended Citation
Sandra F. Sperino,
Bostock and the Forgotten EEOC, 103 Texas Law Review 141
(2024).
Available at: https://scholarship.law.missouri.edu/facpubs/1211
