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 for 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.

“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 enforcement guidance says. 

The guidelines would affect most employers, private or public.

The EEOC announced last fall a proposed update of its harassment policy affecting 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
Burrows’ 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.

“Harassment, both in-person and online, remains a serious issue in America’s workplaces,” said Burrows, a Democrat, of the new guidelines in a public statement issued Monday afternoon. “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.” 

Joining 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 guidance.

Women’s rights are under attack by the EEOC, said Lucas in a statement issued Monday. 

“Biological sex is real, and it matters. Sex is binary (male and female) and is immutable,” Lucas said in a public statement. She added, “It is not harassment to acknowledge these truths—or to use language like pronouns that flow from these realities, even repeatedly. Relatedly, each sex has its own, unique privacy interests, and women have additional safety interests that warrant certain single-sex facilities at work and other spaces outside the home. It is neither harassment nor discrimination for a business to draw distinctions between the sexes in providing single-sex bathrooms or other similar facilities which implicate these significant privacy and safety interests.” 

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.

“If you still believed that the Biden administration’s pedal-to-the-metal advancing of gender ideology is all about freedom and individual rights, this new EEOC ‘guidance’ should dispel that myth,” Jay Richards, director of the Richard and Helen DeVos Center for Life, Religion, and Family at The Heritage Foundation, told The Daily Signal. (The Heritage Foundation founded The Daily Signal.)

“Employers may now find themselves in legal hot water if they prefer to use language, including pronouns, and preserve private spaces that comport with biological reality rather than the bizarre canons of gender ideology,” Richards continued. “We’re dealing with a totalitarian ideology that wants to destroy the present order. The sooner normal people understand that, the sooner we can dispatch this ideology to the history books.”

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

“The Biden administration is no stranger to twisting federal law to suit its aims, and the publication of the EEOC’s final rule on workplace harassment is a prime example,” Sarah Parshall Perry, a senior legal fellow for The Heritage Foundation, told The Daily Signal. 

Perry added:

According to the Biden administration, gender identity and expression are tantamount to ‘sex’ in federal law and require an employer to facilitate an employee’s ‘preferred pronoun’ use and requested bathroom use or face a possible complaint for sexual harassment. 

This is both an untenable conclusion, and not supported by the underlying Supreme Court decision on which the Administration so greatly relies: Bostock v. Clayton County. What’s more, biological women are again rendered to second-class citizens under the EEOC rule and forced to give up any vestige of privacy and security they previously enjoyed. 

And as if that wasn’t enough, the mandatory use of an employee’s requested name and pronouns—those which differ from that employee’s biological sex—is a patent violation of the 1st Amendment, and creates an unavoidable conflict between gender ideology, and freedom of speech and religion. I expect the swift filing of multiple legal challenges against the new rule.

This story was updated to include comments from commission members of the Equal Opportunity Employment Commission.