Group of 18 AGs sue EEOC alleging 'unlawful' attack on employers with new gender identity guidance

Tennessee Attorney General Jonathan Skrmetti, along with 17 attorneys general, filed a lawsuit against the Equal Employment Opportunity Commission (EEOC) on Tuesday in response to a new sexual harassment guidance covering gender identity under Title VII.

Under Title VII, employers cannot discriminate based on sexual orientation. 

According to Skrmetti's office, "an employer may be liable under Title VII if they or another employee use a name or pronoun inconsistent with an employee’s preferred gender identity, limits access to a bathroom or other sex-segregated facility based on biological sex and not on gender identity, and/or if a customer or other non-employee fails to use an employee’s preferred pronouns or refuses to share a restroom with someone of the opposite sex."

According to the complaint, "this new regime threatens Tennessee, its co-Plaintiff States, and countless other employers with enforcement actions and civil liability unless they promote the gender- identity preferences of their employees."

The complaint said that plaintiffs brought the suit forward to "again enjoin EEOC’s unlawful expansion of Title VII to create new gender-identity rules, and to obtain ultimate vacatur of the Enforcement Document’s unlawful approach."

Skrmetti called the new guidance an attack on the "separation of powers" under the U.S. Constitution.

"In America, the Constitution gives the power to make laws to the people’s elected representatives, not to unaccountable commissioners, and this EEOC guidance is an attack on our constitutional separation of powers. 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," he said in a statement about the lawsuit.

"This end-run around our constitutional institutions misuses federal power to eliminate women’s private spaces and punish the use of biologically-accurate pronouns, all at the expense of Tennessee employers," he added.