After the Equal Employment Opportunity Commission (EEOC) issued Enforcement Guidance on Harassment in the Workplace – its first in decades – it is facing state Attorney General opposition.
The first Guidance on harassment in 25 years, the agency split the document into three parts: covered bases and causation; discrimination with respect to a term, condition or privilege of employment; and employer liability for harassing conduct.
Protected characteristics covered by the Guidance include race, color, religion, sex (including sexual orientation, gender identity, pregnancy, childbirth or related medical conditions), age and genetic information (including family medical history).
Within the definition of unlawful harassment, the agency delineated different types of harassment, such as mistaken perception harassment (based on the incorrect perception that an individual has a protected characteristic), associational harassment, intraclass harassment, intersectional harassment (based on two or more protected characteristics) and systemic harassment.
After releasing the proposed Guidance for public comment last October, the EEOC published the final document on April 29, with immediate effect on employers.
The AGs filed suit soon after, alleging that the Guidance expands the scope of Title VII liability beyond what is authorized by Congress.
In particular, the AGs took issue with the Guidance as "an exemplar of recent federal agency efforts to enshrine sweeping gender-identity mandates without congressional consent," according to the complaint. "Among other things, the [Guidance] declares that Title VII requires all covered employers and employees to use others' preferred pronouns; allow transgender individuals to use the shower, locker room, or restroom that corresponds to their gender identity; and refrain from requiring employees to adhere to the dress code that corresponds to their biological sex."
"This EEOC guidance is an attack on our constitutional separation of powers," Tennessee AG Jonathan Skrmetti said in a statement. "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. 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."
To read the EEOC's Enforcement Guidance on Harassment, click here.
To read the complaint in Tennessee v. EEOC, click here.
Why it Matters
The EEOC's new Guidance remains in effect for now, with the litigation pending in Tennessee federal court.
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