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Attorneys general from 18 Republican-led states are suing the Equal Employment Opportunity Commission (EEOC) and Department of Justice over new enforcement guidance on workplace harassment to protect transgender workers.
The EEOC in April expanded worker harassment protections to LGBTQ+ workers, citing a 2020 Supreme Court ruling that found that discrimination based on sexual orientation or gender identity qualifies as workplace discrimination violating Title VII. The EEOC stated among its new guidance that employers must use employees’ preferred pronouns and allow them to use the restroom that corresponds with their gender identity, or potentially face harassment or discrimination claims.
In 2021, President Biden also issued an executive order on preventing and combating discrimination based on gender identity and sexual orientation, which cited the same 2020 ruling, Bostock v. Clayton County.
“Harassment, both in-person and online, remains a serious issue in America’s workplaces. 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,” Charlotte Burrows, chair of the EEOC, said in a press release following the release of the new guidance.
The lawsuit is led by Tennessee, but includes Alabama, Alaska, Arkansas, Georgia, Indiana, Iowa, Kansas, Kentucky, Mississippi, Missouri, Nebraska, Ohio, South Carolina, South Dakota, Utah, Virginia, and West Virginia.
The suit claims that the EEOC’s guidance is an “unlawful expansion of Title VII to create new gender-identity rules” and that the “EEOC has no authority to resolve these highly controversial and localized issues,” according to the filing. The plaintiffs are also arguing that while the Supreme Court ruling determined a worker cannot be terminated based on their gender identity or sexual orientation, it was a “narrow decision” and other workplace actions were not part of the ruling.
“When, as here, a federal agency engages in government over the people instead of government by the people, it undermines the legitimacy of our laws and alienates Americans from our legal system,” Jonathan Skrmetti, Tennessee’s attorney general, said in a statement.
The EEOC and Department of Justice did not respond to HR Brew’s requests for comment.