Eighteen states filed suit this week in a Tennessee federal district court challenging an EEOC Enforcement Guidance on Harassment in the Workplace issued on April 29. The lengthy Guidance includes the following:
[S]ex-based harassment includes harassment based on sexual orientation or gender identity, including how that identity is expressed. Harassing conduct based on sexual orientation or gender identity includes epithets regarding sexual orientation or gender identity; physical assault due to sexual orientation or gender identity; outing (disclosure of an individual’s sexual orientation or gender identity without permission); harassing conduct because an individual does not present in a manner that would stereotypically be associated with that person’s sex; 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 complaint (full text) in State of Tennessee v. EEOC, (ED TN, filed 5/13/2024) among other things alleges that the Guidance violates the First Amendment, saying in part:
By purporting to require employers and their employees to convey the Administration’s preferred message on controversial gender-identity preferences— for example, requiring the use of pronouns that align with an employee’s self-professed gender identity and prohibiting the use of pronouns consistent with that employee’s biological sex—the Enforcement Document unconstitutionally compels and restrains speech, even if contrary to the regulated parties’ viewpoints....
Requiring that employers and their employees adhere to EEOC’s chosen gender ideology orthodoxy likewise treads on religious freedoms. Because Title VII provides exemptions for small employers, it is not “generally applicable,” and the Enforcement Document triggers strict scrutiny under free-exercise caselaw.... EEOC’s gender-ideology-accommodation mandate impermissibly violates employers’ and employees’ free-exercise rights.... Thus, adopting the policies required by the Enforcement Document would cause Plaintiff States to violate their employee’s First Amendment rights.
Tennessee's Attorney General issued a press release announcing the filing of the lawsuit.