Using incorrect pronouns or failing to allow employees to use their chosen bathroom could leave employers liable for harassment.
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.
“The commission’s guidance effectively eliminates single-sex workplace facilities and impinges on women’s rights to freedom of speech and belief,” she added, accusing her Democrat colleagues of disregarding “biological realities, sex-based privacy and safety needs of women.”
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.
By Bill Pan
