Feds warn employers can be punished for failing to use preferred transgender pronouns, restrooms

In landmark guidance, the federal commission created to fight racial and sexual discrimination declared Monday that employers that fail to use a worker's preferred pronoun or refuse them the chance to use the restroom of their choice will be engaging in prohibited harassment.

The U.S. Equal Employment Opportunity Commission published the new harassment guidelines Monday after voting along partisan lines on Friday to approve them, even in the face of opposition from nearly two dozen red states. Three Democratic appointees approved the rules while two Republicans opposed them.

The new document elevates gender identity as a protected class under discrimination laws like race, sex and religion.

Prohibited harassment 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 regulatory document declared.

You can read the document here.

Job Creators Network, one of the nation's leading small business groups, decried the new guidance.

"The Biden administration's new guidance on transgender employees is yet another example of executive overreach by unaccountable bureaucrats," Job Creators Network CEO Alfredo Ortiz said. "The guidance is a solution in search of a problem, as the overwhelming majority of employers already provide their employees with a respectful working environment, no matter what their backgrounds.

"While the Biden administration is focused on using the correct pronouns, small businesses are suffering under the weight of resurgent inflation, high energy costs, and a credit crunch due to Democrats' bad policies. Rules about how to treat transgender employees amount to another headache for employers at the worst possible time," he added.

The guidance offered a hypothetical example of the sort of conduct that will be prohibited in workplaces going forward.

"Chloe, a purchase order coordinator at a retail store warehouse, is approached by her supervisor, Alton, who asks whether she was 'born a man' because he had heard a rumor that 'there was a transvestite in the department.' Chloe disclosed to Alton that she is transgender and asked him to keep this information confidential," the regulatory document states. "After this conversation, Alton instructed Chloe to wear pants to work because a dress would be 'inappropriate,' despite other purchase order coordinators being permitted to wear dresses and skirts.

"Alton also asks inappropriate questions about Chloe’s anatomy and sexual relationships. Further, whenever Alton is frustrated with Chloe, he misgenders her by using, with emphasis, “he/him” pronouns, sometimes in front of Chloe’s coworkers. Based on these facts, Alton’s harassing conduct toward Chloe is based on her gender identity," the document states.

EEOC Chairwoman Charlotte A. Burrows argued the changes were necessitated by the Supreme Court’s Bostock v. Clayton decision in 2020 that found that a company would be in violation of Title VII anti-discrimination laws if it fired a worker “simply for being … transgender.”

But 20 Republican state attorneys general told the EEOC last November that the agency's efforts to impose restrictions on pronouns and bathrooms were not authorized by the ruling or by any action of Congress. “Bostock gives no license to these and other of EEOC’s novel proposals," the attorneys generals wrote.

You can read that letter here.