Amicus Brief: Harris Funeral Homes v. EEOC


This case will address what Title VII of the Civil Rights Act of 1964 means by prohibiting employment discrimination “because … of sex.” Specifically, the Supreme Court will answer whether that language encompasses discrimination because of sexual orientation, gender identity, and/or transgender status. However the Court decides to interpret the phrase, it is crucial that the Court clarify how much deference—if any—is owed to the EEOC’s interpretations of Title VII. This issue arises because the EEOC does not have rulemaking authority to fill (perceived) gaps in the statute. It only has the authority to issue procedural rules. As NCLA’s brief explains, judicial deference to EEOC guidance or enforcement decisions thus wrongfully empowers the agency to create binding substantive rules, evade bicameralism and presentment, and violate the Due Process Clause.

Join the new civil liberties movement. Protect Americans from the Administrative State!

CASE: Harris Funeral Homes v. EEOC (closed)


DOCUMENT: Nos. 17-1618, 17-1623, 18-107


FILED: August 22, 2019


June 15, 2020 | Supreme Court Decision on the Merits
Click here to read the full document.
August 22, 2019 | Brief of the New Civil Liberties Alliance as Amicus Curiae in Support of the Employers
Click here to read the full document.


August 22, 2019 | NCLA Asks Supreme Court to Renounce ‘Great Deference’ to EEOC Interpretations

Washington, D.C. – Today, the New Civil Liberties Alliance filed an amicus curiae brief supporting the employers in three consolidated cases scheduled for oral argument before the U.S. Supreme Court on October 8:  Bostock v. Clayton Co., GeorgiaAltitude Express, Inc. v. Zarda; and Harris Funeral Homes v. EEOC. At issue in the cases is what Title VII of the Civil Rights Act of 1964 means by prohibiting employment discrimination “because … of sex.” Specifically, the Court will answer whether that language encompasses discrimination because of sexual orientation, transgender status, and/or based on sex stereotyping.

NCLA’s brief does not take a position on what the statute means or whether the Civil Rights Act should be extended to cover these types of discrimination. Rather, NCLA explains why the Supreme Court needs to clarify that the Equal Employment Opportunity Commission’s interpretations of Title VII do not deserve deference from federal courts. EEOC’s expansive and unlawfully issued interpretation of Title VII adopted a definition of the word “sex” that Congress has repeatedly declined to enact—which exposed a larger problem.

Congress has not granted substantive rulemaking powers to EEOC, yet the agency has managed to obtain the functional equivalent of such powers by receiving “great deference” from federal courts for the regulatory guidance that it issues. If federal courts defer to EEOC guidance during enforcement litigation, then parties regulated by Title VII are forced to treat agency guidance as binding—even though Congress never gave rulemaking power to the agency.

The Supreme Court has retreated from giving ‘great deference’ in recent cases, but lower courts continue to defer to EEOC because the Court has never formally overruled the doctrine. NCLA also objects that courts’ abandoning their independent judgment to favor EEOC when it is an actual litigant before the court denies due process of law to the party EEOC is suing. However SCOTUS interprets the meaning of “sex” discrimination, the Court must clarify that federal courts owe no deference to the EEOC’s substantive interpretations of Title VII.

NCLA released the following statements:

Federal courts should not be giving federal agencies power through the use of judicial deference doctrines that Congress never gave those agencies. The Supreme Court ought to renounce unequivocally the ‘great deference’ standard that it created in 1971, so that lower courts will stop deferring to EEOC guidance.”
Mark Chenoweth, Executive Director, NCLA

Executive agencies and officials cannot create law in place of Congress. EEOC has violated this bedrock principle of our founding charter.”
Adi Dynar, Litigation Counsel, NCLA


NCLA is a nonprofit civil rights organization founded by prominent legal scholar Philip Hamburger to protect constitutional freedoms from violations by the Administrative State. NCLA’s public-interest litigation and other pro bono advocacy strive to tame the unlawful power of state and federal agencies and to foster a new civil liberties movement that will help restore Americans’ fundamental rights.