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FIRST ON THE DAILY SIGNAL—Under new federal guidelines, an employer would be guilty of harassment for requiring someone to use a restroom that comports with his or her biological sex, or with referring to someone by a pronoun the person doesn’t want used.

The Equal Employment Opportunity Commission published the guidance on Monday. The guidance passed on a 3-2 vote, along party lines on Friday, a source familiar with the EEOC confirmed.

The guidance, which is now final, says that “sex-based harassment” includes “intentional and repeated use of a name or pronoun inconsistent with the individual’s gender identity.” Harassment would also include “the denial of access to a bathroom or other sex-segregated facility consistent with the individual’s gender identity.”

The EEOC announced last fall it was updating a harassment policy to include sexual orientation and gender identity rules. This prompted opposition from 20 state attorneys general, led by Tennessee Attorney General Jonathan Skrmetti.

In November, the attorneys general contended what was then the proposed “Enforcement Guidance on Harassment in the Workplace” updates would threaten the First Amendment rights of employers, employees, and possibly customers. 

“Here, the proposed guidance would require employers to affirm or convey to employees and customers—often against religious conviction or deeply held personal belief—messages that a person can be a gender different from his or her biological sex, that gender has no correlation to biology, or that they endorse the use of pronouns like ‘they/them,’ ‘xe/xym/xyrs,’ or ‘bun/bunself,” the letter from the attorneys general says.

“This mandate flouts First Amendment freedoms of religion and speech—yet EEOC rejects any role for accommodation of contrary religious beliefs or speech,” the attorneys general add. “Further, EEOC’s for-cause insulation from direct presidential supervision unconstitutionally blurs the lines of accountability for this overhaul of workplaces nationwide.”

In 2021, EEOC Chairwoman Charlotte Burrows attempted, in a statement, to unilaterally include these actions under harassment without public comment or a vote by the full commission. However, a federal court in Tennessee enjoined the guidance from going forward in 2022. A separate federal court in Texas
vacated Burrow’s guidance altogether. The commission did not appeal the rulings.

Title VII prohibits employment discrimination based on race, color, religion, sex, and national origin. It applies to any employer with more than 15 employees.

In 2020, the Supreme Court held in the case of Bostock v. Clayton County, that a firm violates Title VII if it fires an employee “simply for being … transgender.” But, the Republican state attorneys general argued in the November letter, “Bostock gives no license to these and other of EEOC’s novel proposals.”

“Nor, in all events, can EEOC permissibly require these deeply controversial gender-identity accommodations without express congressional authorization—authorization not found in Title VII,” the letter continued.

The guidance does not carry the same weight as a law passed by Congress or a regulation imposed by an agency. However, the guidance essentially states the position of the EEOC. This means an employee inclined to claim harassment regarding a restroom or pronoun dispute would have the guidance to refer to. Also, under private litigation, a plaintiff could refer to the formal position of a federal agency.

The EEOC website describes guidance as “official agency policy and explains how the laws and regulations apply to specific workplace situations.”

Burrows, the Democrat chair of the commission, voted for the updated harassment guidance, as did two other Democrat commissioners, Jocelyn Samuels and Kalpana Kotagal. The two Republican members, Keith Sonderling and Andrea Lucas, voted against the guidance.