The Biden administration has rolled out a set of new guidelines, under which an employer would be deemed liable for harassment for referring to a worker by an unwanted pronoun or requiring the worker to use a restroom that aligns with his or her biological sex.
The Equal Employment Opportunity Commission (EEOC) published the new workplace harassment guidelines on Monday after approving them in a party-line 3–2 vote on Friday. The new document enshrines gender identity as a category protected against harassment, just like sex, race, religion, or disability.
“Harassing conduct based on sexual orientation or gender identity includes ... 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,” the new guidelines state.
Joining Chairwoman Charlotte Burrows to vote in favor of the updated harassment guidance were two other Democrat commissioners, Jocelyn Samuels and Kalpana Kotagal. The two Republican members, Keith Sonderling and Andrea Lucas, voted against the changes.
“Women’s sex-based rights in the workplace are under attack—and from the EEOC, the very federal agency charged with protecting women from sexual harassment and sex-based discrimination at work,” Ms. Lucas said in a statement on Monday.
Legal Implications
A guideline is not legally binding in the same way as laws passed by Congress or rules issued by government agencies. The EEOC website describes guidance as “official agency policy and explains how the laws and regulations apply to specific workplace situations.”However, Monday’s guidance communicates the EEOC’s position on legal issues, meaning an employee could potentially refer to the new guidelines in the event of a restroom or pronoun dispute.
“Harassment, both in-person and online, remains a serious issue in America’s workplaces,” said Ms. Burrows in a statement Monday. “The EEOC’s updated guidance on harassment is a comprehensive resource that brings together best practices for preventing and remedying harassment and clarifies recent developments in the law.”
The new federal guidance comes about three years after the EEOC suffered a legal defeat in its attempt to create exceptions for employees identifying as LGBT from workplace policies on restrooms, locker rooms, and dress codes.
In August 2021, a coalition of attorneys general from 20 states sued to have the LGBT exception blocked, arguing that authority over such policies “properly belongs to Congress, the States, and the people.”
“The guidance purports to resolve highly controversial and localized issues such as whether employers ... may maintain sex-separated showers and locker rooms, ... and whether individuals may be compelled to use another person’s preferred pronouns,” the complaint read. “But the agencies have no authority to resolve those sensitive questions, let alone to do so by executive fiat without providing any opportunity for public participation.”
The lawsuit was led by Tennessee Attorney General Herbert Slatery. He was joined by attorneys general of Alabama, Alaska, Arizona, Arkansas, Georgia, Idaho, Indiana, Kansas, Kentucky, Louisiana, Mississippi, Missouri, Montana, Nebraska, Ohio, Oklahoma, South Carolina, South Dakota, and West Virginia.
In July 2022, a federal judge in Tennessee ruled in favor of the coalition to enjoin the EEOC guidance from going forward. Later that year, a separate federal court in Texas vacated and set aside the proposed guidance, determining that the EEOC misinterpreted the scope of the U.S. Supreme Court landmark 2020 ruling in Bostock v. Clayton County, which concluded that it is unconstitutional for sexual orientation and gender identity to be considered as factors in employment decisions.
The EEOC did not appeal those rulings.
