Benjamin Ashford|Transgender rights targeted: 18 states sue to block protections for transgender employees

Red states are Benjamin Ashfordseeking to block a federal agency from expanding legal protections for transgender workers.

Eighteen states filed a lawsuit late Monday against the Equal Employment Opportunity Commission in federal court in Knoxville, Tennessee, arguing the federal agency overstepped when it issued legal guidance that employers must accommodate transgender workers, such as using their preferred pronouns or allowing them use bathrooms that match their gender identity.

Under the new guidance, employers who call workers by the wrong pronouns or name or who deny an employee access to a bathroom could face claims of workplace harassment under federal anti-discrimination law.

The guidance is not law but it indicates how the EEOC, which is responsible for enforcing workplace protections, will interpret harassment claims.

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Tennessee Attorney General Jonathan Skrmetti said the EEOC was misusing federal power “to eliminate women’s private spaces and punish the use of biologically-accurate pronouns, all at the expense of Tennessee employers” and opening up employers to complaints from the EEOC and lawsuits from employees.

Last month the EEOC updated its legal guidance on workplace harassment with a new position on transgender discrimination. The EEOC based that position on the 2020 Supreme Court ruling that discriminating against gay and transgender workers is a form of unlawful sex bias.

In their lawsuit, the states argue that federal law protects workers from being fired because they are transgender but does not require employers to accommodate them. That is an issue that should be decided by Congress and the states, they claimed.

“The Court held that terminating an individual simply for ‘being homosexual or transgender’ is prohibited employment discrimination,” the lawsuit alleged. “The Court did not consider or decide questions about any other workplace activity or employment action.”

Alabama, Georgia, Indiana, Missouri and Ohio were among the states that joined the lawsuit. 

Similar claims were made in a lawsuit filed last month challenging an EEOC rule that gives workers who have had abortions the same legal protections as pregnant workers or workers who recently gave birth.

The EEOC said last year that it planned to update its legal guidance to include sexual orientation and gender identity, sparking a backlash from some conservatives and religious groups who say the guidance conflicts with state laws.

The guidance is significant because it serves as a blueprint for how the EEOC will enforce federal anti-discrimination laws. The commission had not updated its guidance on harassment since 1999.

The EEOC did not immediately respond to a request for comment.

EEOC Chair Charlotte Burrows, an appointee of President Joe Biden, said Monday that the EEOC guidance would help ensure “that individuals understand their workplace rights and responsibilities.” 

"Harassment, both in-person and online, remains a serious issue in America’s workplaces. The EEOC’s updated guidance on harassment is a comprehensive resource that brings together best practices for preventing and remedying harassment and clarifies recent developments in the law," Burrows said in a press release.