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Showing blatant disregard for the Supreme Court’s clear guidance in its Bostock ruling, the EEOC redefines sex-based discrimination and demands that employers use an employee’s preferred pronouns and let male employees use women’s bathrooms — or face punishment.
The Equal Employment Opportunity Commission (EEOC) has issued new rules on Title VII, among them that an employer or employee who refuses to use another employee’s preferred pronouns or refuses to permit them to use the bathroom of their choice is committing harassment.
On Monday the EEOC issued its first update to its enforcement guidelines in 25 years, which, among other things, classifies gender identity as a protected class on the same level as race, sex, and religion.
“Since the Commission last issued guidance on workplace harassment, notable changes in the law have occurred, including the Supreme Court’s 2020 decision in Bostock v. Clayton County; the EEOC convened a bipartisan Select Task Force on Harassment in the Workplace and issued a detailed report setting forth its Co-Chairs’ findings and recommendations; and new issues have emerged, such as online harassment,” the EEOC wrote.
“The new guidance updates, consolidates, and replaces the agency’s five guidance documents issued between 1987 and 1999, and serves as a single, unified agency resource on EEOC-enforced workplace harassment law.”
Under the updated guidance, refusing to use a person’s preferred pronouns is defined as harassment.
Among the types of discrimination now recognized are: “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 guidance also lists discrimination based on a person’s decision to have an abortion as harassment.
The new guidance was approved by a 3-2 vote, with all three Democrat appointees voting to adopt the new rules.
To qualify under Title VII an employer must have 15 or more employees, which means the new rules will impact most public and private employers.
The guidance has received strong pushback dating back to 2021. The state of Texas filed a lawsuit against the Biden Administration following the EEOC’s release of advisory standards instructing employers to use an employee’s preferred pronouns and allow them to use the bathroom of their chosen gender identity.
Two years later, 20 states’ attorneys general sent a letter to the EEOC stating their opposition to the proposed guidance, noting that in its Bostock ruling, “the Supreme Court narrowly held that an employer violates Title VII when it fires an employee ‘simply for being…transgender.’ Yet EEOC casts Bostock as a silver bullet for imposing breathtakingly broad transgender-based liability in contexts the Supreme Court never considered.”
They warned that the new rules do not include a religious exemption, which means that employers with deeply held religious convictions about God’s design for the sexes will be forced to either violate their beliefs or face punishment.
“To avoid potential liability for creating a ‘hostile work environment,’ EEOC would require employers to affirmatively correct employees and customers who use biologically correct pronouns that conflict with a person’s gender identity—thus conveying agreement with the controversial message that sex stems from something other than biology,” they wrote.
The letter also stated that the new guidance violates the recent Supreme Court decision regarding free speech in 303 Creative v. Elenis. “Free-speech limits do not allow EEOC to compel employers to ‘speak its preferred message’ against their will,” later adding, “This mandate flouts First Amendment freedoms of religion and speech—yet EEOC rejects any role for accommodation of contrary religious beliefs or speech.”
Andrea Lucas, one of the two members of the EEOC who voted against the guidance, stated, “Biological sex is real, and it matters. Sex is binary (male and female) and is immutable. It is not harassment to acknowledge these truths—or to use language like pronouns that flow from these realities, even repeatedly.”
She also voiced privacy reasons for opposing the guidance, stating,
“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.”
Jay Richards, director of the Richard and Helen DeVos Center for Life, Religion, and Family at the Heritage Foundation, issued a response to the guidance, saying,
“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. 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.”
He 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’s basis for this guidance is the Supreme Court’s ruling in Bostock v. Clayton County. In that 2020 decision, the Court recognized sexual orientation and gender identity as protected classes under Title VII when it comes to hiring and firing employees.
However, that decision has been repeatedly twisted and misused as justification for mandating that transgenders be allowed to use the bathroom or locker room of their chosen gender identity, to play on sports teams according to their gender identity, and to compel others to refer to them by their preferred pronouns.
This has been pushed despite the Supreme Court’s explicit statement that Bostock was strictly limited to employment decisions. Justice Neil Gorsuch addressed the potential consequences of the ruling that employers were worried about and tried to allay their concerns by stating that the decision was narrow and specific. He wrote,
What are these consequences anyway? The employers worry that our decision will sweep beyond Title VII to other federal or state laws that prohibit sex discrimination. And, under Title VII itself, they say sex-segregated bathrooms, locker rooms, and dress codes will prove unsustainable after our decision today. But none of these other laws are before us; we have not had the benefit of adversarial testing about the meaning of their terms and we do not prejudge any such question today. Under Title VII, too, we do not purport to address bathrooms, locker rooms, or anything else of the kind. The only question before us is whether an employer who fires someone simply for being homosexual or transgender has discharged or otherwise discriminated against that individual ‘because of such individual’s sex.’… Firing employees because of a statutorily protected trait surely counts. Whether other policies and practices might or might not qualify as unlawful discrimination or find justifications under other provisions of Title VII are questions for future cases, not these.
As noted in the quote above, the Bostock decision has nothing to do with sex-segregated facilities, which courts have long found to be within the bounds of the Constitution, nor speech codes handed down from the EEOC. It only means that an employer cannot refrain from hiring or fire someone solely because of their sexual orientation or gender identify.
It’s highly concerning that those in positions of power have been so willing to blatantly ignore the narrowly construed ruling in Bostock, not to mention the First Amendment.
The EEOC’s guidance on bathrooms and pronouns will no doubt be challenged in court, so ultimately, the Supreme Court will likely have to explain its Bostock decision again in order to clear up disputes over its reach. Hopefully, this time, the executive branch and other government officials will actually respect and follow the justices’ ruling.
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