Sandra Sperino, associate dean for research and faculty development and the Elwood L. Thomas Missouri Endowed Professor of Law, this fall published an article, “Bostock and the Forgotten EEOC” in the Texas Law Review.
On June 15, 2020, the United States Supreme Court issued a historic opinion. In Bostock v. Clayton County, Georgia, the SCOTUS formally recognized that federal discrimination law prohibits discrimination based on sexual orientation and gender identity. The Supreme Court barely mentioned the Equal Employment Opportunity Commission (EEOC), the federal agency charged with enforcing federal discrimination law. In her article, Dean Sperino argues that reading the Bostock decision, it would be easy to get the impression that the EEOC played no or little role in the outcome.
Dean Sperino’s newest article reclaims and restores the EEOC’s role. In restoring the EEOC’s role in this story, two themes emerge. She argues that 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.
“Exploring this problem illuminates how many statutory interpretation frameworks, including ones that rely on Chevron deference, have a cramped view of when and how courts should defer to or at least discuss agency actions,” Sperino said.
Dean Sperino continues to write that this intervention comes at a particularly important time, given the rise of new textualism and progressive textualism. Her article challenges whether any of these methodologies is consistent with Congressional intent, to the extent they allow courts to ignore agencies like the EEOC.
Second, Dean Sperino argues that the EEOC played an important role in developing the idea that Title VII prohibits discrimination on the basis of gender identity. She writes that the EEOC acted through a defuse set of mechanisms: filing amicus briefs, litigating claims on behalf of litigants, using its charge processing authority, and exercising its power to issue decisions in federal sector cases that govern federal workers. The EEOC was not the earliest or the only advocate for the idea that Title VII prohibits gender identity discrimination. However, its advocacy came at a crucial point in the legal timeline.
Original source can be found here.