Employers Must Honor Preferred Pronouns, Bathrooms for Employees Identifying as Transgender: Feds

The Biden administration has introduced new guidelines that state employers could be responsible for harassment if they refer to a worker using a pronoun they do not want or require them to use a restroom that corresponds to their biological sex.

The Equal Employment Opportunity Commission (EEOC) released these updated workplace harassment guidelines on Monday, following a 3–2 vote in favor on Friday. The guidelines now protect gender identity as a category against harassment, alongside sex, race, religion, and disability.

The new guidelines state that “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.”

Chairwoman Charlotte Burrows, along with Democrat commissioners Jocelyn Samuels and Kalpana Kotagal, voted in favor of the updated harassment guidelines. Republican members Keith Sonderling and Andrea Lucas opposed the changes.

Ms. Lucas expressed concern about women’s rights in the workplace being threatened by the EEOC’s guidance, accusing her colleagues of ignoring biological realities and the safety needs of women.

Legal Implications

Guidelines are not legally binding like laws passed by Congress or rules issued by government agencies. The EEOC describes guidance as official agency policy that explains how laws and regulations apply to specific workplace situations.

Although guidance is not legally binding, employees could use the EEOC’s position on legal issues from the new guidelines to address restroom or pronoun disputes.

Ms. Burrows highlighted the importance of preventing and remedying harassment in the workplace, emphasizing that the updated guidance provides best practices and clarifies recent legal developments.

The new federal guidance follows a legal battle three years ago when the EEOC attempted to create exceptions for LGBT employees from workplace policies on restrooms, locker rooms, and dress codes. In 2021, a coalition of attorneys general from 20 states sued to block the LGBT exception, arguing that such policies should be determined by Congress, states, and the people.

These legal challenges led to federal courts ruling in favor of blocking the EEOC guidance, citing misinterpretation of the law regarding sexual orientation and gender identity in employment decisions.

The EEOC did not appeal these rulings, marking a significant setback in their attempt to establish guidelines on gender identity and sexual orientation in the workplace.