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New EEOC Guidelines Force Employers to Allow Men in Women’s Bathrooms, Prohibit “Misgendering”

New EEOC Guidelines Force Employers to Allow Men in Women’s Bathrooms, Prohibit “Misgendering”

Dissenting EEOC Commissioner: Women’s sex-based rights in the workplace are under attack—and from the EEOC, the very federal agency charged with protecting women from sexual harassment and sex-based discrimination at work.

First they came for the schools, now they’re coming for businesses. The Biden administration’s campaign to prioritize transgender rights for students under Title IX has moved on to the workplace via newly expanded Title VII protections for employees. And once again, women—the people both laws were meant to protect—will pay the price.

Late last month, the Equal Employment Opportunity Commission (EEOC) released new guidelines that broaden the definition of workplace discrimination to include harassment based on “gender identity.”

Under the updated federal guidance, employers who misgender employees (i.e., refer to them with a pronoun inconsistent with their known gender identity) or deny them access to restrooms based on their gender identity are liable for sex-based workplace harrasment.

The guidelines state that they’re “not binding on the public in any way.” But that disclaimer is “worth little,” says Commissioner Andrea Lucas, one of the two dissenters who voted against adopting them. Employers now know where the enforcement agency stands, and they’re going to do what it takes to avoid liability.

That means working women will be sharing the ladies’ room with men, putting them at risk for exactly the kind of sexual harassment (or worse) Title VII was meant to protect them from.

It’s a perverse result, Lucas says:

Women’s sex-based rights in the workplace are under attack—and from the EEOC, the very federal agency charged with protecting women from sexual harassment and sex-based discrimination at work.

The Commission’s guidance turns anti-harassment principles completely upside down. Under the Commission’s pronouncement, a company denying biological males access to its women’s workplace bathroom, shower, locker or dressing room, or sleeping facilities no longer is exercising reasonable care to prevent harassment of female workers. To the contrary, taking this reasonable and necessary step to protect women now is deemed evidence of harassment against any biological male who self-identifies as having a female “gender identity.”

The Commission says it’s just bringing its guidelines up to speed since they were last revised 25 years ago. They now reflect the Supreme Court’s 2020 landmark decision in Bostock v. Clayton County, where the Court held that an employer who fires an employee “simply for being … transgender” violates Title VII’s ban on sex discrimination.

Not so fast, critics say.  Bostock was a narrow ruling, they argue, and the Commission exceeded its scope.

Well, here’s what the Court said in Bostock:

The employers worry that our decision will sweep beyond Title VII to other federal or state laws that prohibit sex discrimination. … [U]nder Title VII itself, they say sex-segregated bathrooms, locker rooms, and dress codes will prove unsustainable after our decision today. But … we do not purport to address bathrooms, locker rooms, or anything else of the kind.

The only question before us is whether an employer who fires someone simply for being homosexual or transgender has discharged or otherwise discriminated against that individual “because of such individual’s sex.” … Whether other policies and practices might or might not qualify as unlawful discrimination or find justifications under other provisions of Title VII are questions for future cases, not these.

That’s on the one hand.

On the other, the Court didn’t close the door on those “policies and practices” either: it left it open, by saying that whether they qualified as workplace discrimination was a question for another day.

And since Bostock, federal courts have marched right through that door. Footnote 37 to the guidelines collects their decisions, all relying on Bostock to find that transgender-identity-based harassment is sex discrimination under Title VII.

Nonetheless, 20 states Attorneys General argue the Commission is taking the Supreme Court ruling too far. Bostock doesn’t license the EEOC to require allowing male workers into female co-workers’ bathrooms, they wrote in a letter last November responding to the proposed guidelines.

Nor does Bostock mandate that employers adopt their transgender employees’ preferred pronouns. That amounts to a regulation of pure speech, they say in the letter.

Meanwhile, in lawsuits over Biden’s revamped Title IX, 15 states and several conservative groups are making very similar arguments, the Epoch Times reports. “The U.S. Department of Education has no authority to let boys into girls’ locker rooms,” Tennessee Attorney General Jonathan Skrmetti said in a statement on the Title IX complaint his office filed together with four other states.

Skrmetti also led the coalition of states objecting to the proposed EEOC guidelines last November. The “EEOC’s Title VII stance will unleash unconstitutional chaos in the Nation’s workplaces,” he said:

The EEOC has once again proposed enforcement guidance that extends beyond its statutory authority and threatens the First Amendment rights of millions of Americans. … Tennessee has successfully challenged EEOC’s unlawful guidance in the past and stands ready to do so again.

Should the EEOC decline [to revise its proposal], Tennessee and the other co-signing states are prepared to pursue appropriate legal action to protect their interests, affected employers, and the democratic process.

If last week’s Title IX lawsuits are any indication, that legal action could be coming very soon.

 

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Comments

Antifundamentalist | May 9, 2024 at 7:16 am

Predators looking for victims and mentally ill men have more social value and will get more legal protection than women. History, sadly, shows us that the more things change, the more they remain the same.

Misgendering is protected free speech, can’t be punished

    AF_Chief_Master_Sgt in reply to MarkS. | May 9, 2024 at 8:07 am

    Shouldn’t we wait until Milhouse makes a ruling about whether misgendering is protected speech. Milhouse has a wonderful way of telling us all how something that is clearly obvious to most people regarding free speech is somehow not protected.

    Capitalist-Dad in reply to MarkS. | May 9, 2024 at 8:31 am

    That’s true in America, but probably not true in Democrat Amerika.

    Milhouse in reply to MarkS. | May 9, 2024 at 8:43 am

    “Misgendering” in general is protected speech, but in the workplace, if it’s done on purpose it can be harassment, exactly in the same way that calling someone a racial slur is protected speech, but not in the workplace. Any kind of deliberate and repeated taunting in the workplace can be harassment.

      mailman in reply to Milhouse. | May 9, 2024 at 9:04 am

      Even if its done on purpose, to call a man a man because thats exactly what a man is, its still protected free speech.

        Milhouse in reply to mailman. | May 9, 2024 at 9:25 am

        Not when it’s done to harass him.

        In general, calling people things they don’t want to be called is inappropriate. If someone wants to be referred to as a woman, for almost all normal purposes doing so is the right thing, and refusing to do so is rude. That doesn’t change reality; he remains a man no matter what you call him, and you’re not required to actually believe he’s a woman. If he starts a conversation and demands to know what you really think, you’re entitled to tell him, and these EEOC guidelines don’t say otherwise. But if you insist on being the kind of person who would torment him, then you’re harassing him and he can sue you. Especially if you’re his employer, so he can’t just avoid you.

          Ironclaw in reply to Milhouse. | May 9, 2024 at 10:08 am

          That isn’t harassment, it’s correctly identifying a person’s sex.

          Concise in reply to Milhouse. | May 9, 2024 at 10:29 am

          What you describe is not what the trans insane would call “misgendering.” You describe a form of harassment (depending on the facts of course) that would not require any special new EEOC guidelines. The trans crazy “misgendering” is beyond that, as the EEOC has demonstrated.

          destroycommunism in reply to Milhouse. | May 9, 2024 at 10:37 am

          agree

          mailman in reply to Milhouse. | May 9, 2024 at 10:51 am

          No, the truth cannot be harassment. And the truth is a man cannot be a woman, regardless of their fweeeelings.

          thalesofmiletus in reply to Milhouse. | May 9, 2024 at 1:03 pm

          No, the truth cannot be harassment.

          The truth is no defense against the EEOC’s $500/hour lawfare. They decide what constitutes harassment and who gets sued. They are sovereign.

          nordic prince in reply to Milhouse. | May 9, 2024 at 6:52 pm

          By that logic, calling Mr. Smith “Mr. Smith” when he insists he’s Queen Victoria would also be “harassment.”

          Mentally ill people are going to be triggered, but that’s no reason to cater to their delusions. That’s called “enablement,” and it’s the last thing these individuals need. They can’t escape the real world, no matter how much they may want everyone to bow to their fantasy. And it IS a fantasy.

          Milhouse in reply to Milhouse. | May 11, 2024 at 6:45 am

          By that logic, calling Mr. Smith “Mr. Smith” when he insists he’s Queen Victoria would also be “harassment.”

          Indeed, if you know it bothers him, and you insist on calling him that because it bothers him, that’s pretty much the dictionary definition of harassment.

      CommoChief in reply to Milhouse. | May 9, 2024 at 9:21 am

      Taunting sure that would be objectionable. Using standard English and objective reality to address another person (Sir/Ma’am) based on the perceived/actual biological sex of the person being addressed isn’t taunting even when it is repeated at least IMO. I don’t believe I am under any obligation to support the delusions of another person nor do I have any duty to participate in their cosplay.

        Milhouse in reply to CommoChief. | May 9, 2024 at 9:26 am

        In polite society, for most general purposes, yes, you do. What you don’t have the duty to do is actually agree with those delusions.

          Virginia42 in reply to Milhouse. | May 9, 2024 at 9:34 am

          No, I do not. I try to avoid such things in the workplace. Can’t wait to retire. The Civil Service is a real sh*t show now and getting worse.

          Ironclaw in reply to Milhouse. | May 9, 2024 at 10:10 am

          No, I’m under no obligation to enable their mental illness. Nor am I under any obligation to butcher the English language by using plural pronouns to refer to a singular person. Nor am I under any obligation to refer to somebody with some stupid made-up word they call a pronoun.

          irishgladiator63 in reply to Milhouse. | May 9, 2024 at 12:07 pm

          In a polite society, the trans people wouldn’t try to make the rest of us lie to make them feel better about their mental health issues. But here we are.

          CommoChief in reply to Milhouse. | May 9, 2024 at 12:24 pm

          In polite society no one would dream of forcing others to adopt speech they disagree with. Instead a polite society recognizes that individuals will have differing opinions, religious beliefs, differing interpretations of those beliefs or philosophical outlooks and that polite society EMBRACES not only the differences of opinion but also the free expression and debate of those differences. IMO, where a particular topic is disruptive to the employer then that employer should be able to eliminate the topic entirely but not to decide that only one viewpoint re the disruptive topic is allowed to be expressed.

        Milhouse in reply to CommoChief. | May 9, 2024 at 9:29 am

        CommoChief, do you actually know any transsexuals? How do you get along with them? Do you insist on insulting and torturing them, by constantly rubbing their faces in the fact that they’re deluded? That’s not how a normal decent person behaves.

          Ironclaw in reply to Milhouse. | May 9, 2024 at 10:23 am

          It’s not torture to correctly identify things.

          JPL17 in reply to Milhouse. | May 9, 2024 at 10:37 am

          But there’s the dilemma, Milhouse: By “getting along” with people who present themselves as the sex that they clearly are not, and who insist you refer to them by their chosen opposite-sex names and pronouns, one is reinforcing their delusions. And I believe it is an ethical choice to refuse to reinforce those delusions.

          mailman in reply to Milhouse. | May 9, 2024 at 10:53 am

          This is a pretty stupid comment, even from you Justice Milhouse.

          People can be what ever the hell they want to be. You want to be a donut, then have at it. However there should be no law compelling me, on pain of imprisonment, to have to play along with their mental health issue and treat them as a donut.

          That to me is immoral and wrong on so many levels.

          CommoChief in reply to Milhouse. | May 9, 2024 at 12:33 pm

          Do what? I don’t have any obligation to affirm someone’s delusions or life.choices. I solve the civility dilemma by using a plain last name without honorific of MR or MS/MRS. So if the particular ‘trans person’ is Joe/Jane Smith then I refer to them as Smith.

          Are you suggesting I must adopt the linguistic and expressive choices of another person in place of my own? I will not allow my good nature and politeness to be transformed into a weapon to be used as a club against me.

          irishgladiator63 in reply to Milhouse. | May 9, 2024 at 12:37 pm

          Why do trans people insist on torturing the rest of us by forcing us to lie to support their delusions? By constantly rubbing in our faces that they get to force themselves and their delusions on us? That’s not how a normal decent person behaves.

          thalesofmiletus in reply to Milhouse. | May 9, 2024 at 1:09 pm

          Tell me more about this normalcy and decency and why a polite society should indulge it.

          Third-party reproduction must be recriminalized.

          Milhouse in reply to Milhouse. | May 11, 2024 at 6:49 am

          However there should be no law compelling me, on pain of imprisonment, to have to play along with their mental health issue and treat them as a donut.

          There is no such law, and none is proposed. What’s being banned in the workplace is harassment plain and simple. Repeatedly telling him he’s not a donut, for the purpose of taunting him. That is all the EEOC is proposing to crack down on.

      Q in reply to Milhouse. | May 9, 2024 at 9:41 am

      Those are not “exactly” the same thing. We are all aware of racial slurs, but referring to a white person as “white,” or calling a black person “black” are factually true, and are not slurs or harrassment. A person may do things to change their appearance to hide their racial characteristics or appear to be a different race (see, e.g., Michael Jackson), but that doesn’t mean they have changed their race. Why would using a male pronoun to address a male be harrassment? If I legally change my name and have some strategic surgery to appear to be the opposite sex, I’m still the same sex (albeit, with emotional/psychological issues and/or delusions). Why would you be deemed to harrass me if you refuse to participate in my delusions?

        Milhouse in reply to Q. | May 11, 2024 at 6:51 am

        Truth is not a defense to harassment. So yes, it’s exactly like a racial slur. You’re calling him something you know he doesn’t like to be called, and that is why you’re doing it. It’s the intent to hurt him that makes it harassment.

      E Howard Hunt in reply to Milhouse. | May 9, 2024 at 12:13 pm

      You seemed to have emerged from some unpublished Ibsen play. It is not politeness, but brute force that requires this behavior. This is not like saying an ugly baby photo is beautiful. If a fellow employee received a dishonorable discharge as an enlisted man, I am not going to call him General. If a hedonist who never took holy orders fancies himself a priest, I will not call him Father.

This is the way to capture the women’s vote I see?

    TargaGTS in reply to Whitewall. | May 9, 2024 at 7:48 am

    Unfortunately, the women who will decide this next election – SINGLE women – are supremely myopic. They care about one thing and one thing only: Aborting the babies of their poor sexual choices. Trump will easily win married women (just like he’ll easily win married men and single women), and he might win married women by a slightly larger margin because of Biden Admin decisions like this. But, single women will be unmoved…because they’re retarded.

    mailman in reply to Whitewall. | May 9, 2024 at 9:06 am

    Mate, women are dead keen on making themselves irrelevant or to put it another way, they actually agree with us men that we are better than them at pretty much everything, including being women.

      Whitewall in reply to mailman. | May 9, 2024 at 9:35 am

      Re women and voting…they demanded the right to vote for all this?

        mailman in reply to Whitewall. | May 9, 2024 at 10:54 am

        Well they are getting the right to vote themselves in to irrelevancy.

        henrybowman in reply to Whitewall. | May 9, 2024 at 11:07 am

        “And once again, women—the people both laws were meant to protect—will pay the price.”

        “A government big enough to give you all you want is big enough to take it all away.”

When employers allow men to use company bathroom facilities and women (predictably) get molested and/or raped because of it, will it be the EEOC that is singularly liable for the damage claims of the victim against the employer?

This is the kind of rule that only benefits predators, sexual abuse counselors and injury lawyers…and Intersectional Marxists, of course.

Vile and Evil.

E Howard Hunt | May 9, 2024 at 7:59 am

What’s the big deal? These fat-cat companies can well afford to place a rape counselor outside each ladies’ room.

AF_Chief_Master_Sgt | May 9, 2024 at 8:12 am

So, someone please explain why women need protection in the workplace, when

a) The Supreme Court can’t define what a woman is

b) If women are equal, why do they need protection?

c) Bonus question: Would a woman choose to be in the woods with a bear, or in an environmentally controlled office with an effeminate male using the same bathroom?

Asking for a friend.

I just wish we could go back to the time when a man who dressed up in pink and acted weird was considered weird. Now they are lauded… and the world is made to spin around them, and their nuttiness.
What the Biden handlers do now,, I just hope it can be undone, before many more normal people are hurt, or worse. Wishcasting.. I know.
TY Jane. Excellent article.

Capitalist-Dad | May 9, 2024 at 8:36 am

Apparently the most important workplace issue for the Biden regime is rape facilitation.

    henrybowman in reply to Capitalist-Dad. | May 9, 2024 at 11:09 am

    Next week, the EEOC will be demanding all industry to install showers in time for “take your daughter to work day.”

      CommoChief in reply to henrybowman. | May 9, 2024 at 7:16 pm

      Sarcastic? Sure. On the other hand, we have a few folks here arguing that this EEOC rule compelling speech is totes ok.

Supply tall bushes and short bushes instead of restrooms. It works out on hikes.

Is it clear now that the Kenyan fanook is actually running the show?

Democrats sure do hate Women dont they?

    destroycommunism in reply to mailman. | May 9, 2024 at 10:52 am

    the left wing by its very own nature is not a happy camper

    even victories are merely roadblocks that are just an excuse to get onto the next misery

    a real or perceived misery,, but a misery

    AND THAT “MISERY”??

    LIFE

    they are miserable people and want allll to be at that level

MoeHowardwasright | May 9, 2024 at 9:08 am

All though the rule focusses on workers, most will forget about the fact that businesses have many visitors. Hypothetical, what if a female employee has an unknown stalker. He or she, knows where she works. Goes in under the pretense of commerce and sees said woman head to the bathroom and follows her in. Sees her enter the stall and then drops something on the floor so he/she can then catch a glimpse. See the problems this ruling creates. This is just scratching the surface. FJB

    irishgladiator63 in reply to MoeHowardwasright. | May 9, 2024 at 12:50 pm

    How about more than just catching a glimpse? How about being there waiting when she opens the stall door? How about kicking the stall door in?

Well, we can’t have my employees misgendering anyone, can we. To prevent that, anyone can ask for a Gender Affirmation Badge that an employee can fill in with the mental delusion of hiszsh choice. The badge will have a caricature of a clown face with a space underneath for their gender. I know, it sounds mean but it’s probably not as offensive as forcing a tattoo on the forearm.

destroycommunism | May 9, 2024 at 10:02 am

thats why and how america has become a socialist country

when the government is in power of businesses

a few more actions and we will be the commmmies that many said

“that will never happen here”

its happening

and

its here

destroycommunism | May 9, 2024 at 10:06 am

the eeoc has been around since 1964 ( probably before that in a different form)

b/c the lefty as usual called everything “civil rights” no one would argue against it

Aemrica ALREADY HAD “CIVIL RIGHTS” BUT …

was not enforced so the gov just created more and more red tape >>>more power over the people

and now we’ve come to this chapter in our ongoing sad(der) history/future

Government overreach is now a normalized edict

I am so glad that I sold my business at the beginning of covid and no longer have to deal with crap like this.

Lucifer Morningstar | May 9, 2024 at 10:33 am

>>The contents of this document do not have the force and effect of law and are not meant to bind the public in any way. This document is intended only to provide clarity to the public regarding existing requirements under the law or agency policies.<<

So if this guidance by the EEOC's own admittance has "no force or effect of law and are not meant to bind the public in any way" why can't businesses simply opt-out of this new guidance interpretation and keep women's bathroom facilities for actual women and not men pretending to be women.

    destroycommunism in reply to Lucifer Morningstar. | May 9, 2024 at 10:45 am

    b/c the intimidation factor is now involved via the government

    and the gop has allowed this lefty take over

    and we have allowed the gop to become the doormats they are

    henrybowman in reply to Lucifer Morningstar. | May 9, 2024 at 11:39 am

    Sure you can… until you get sued over this, and a lefty court gets to “write” that legislation instead of the congress, which is the entire game plan.

Feminism has been defeated by queer males. Leftist freak show.

destroycommunism | May 9, 2024 at 10:44 am

unfortunately

this all then falls into Thought Police territory

“we know you are just trying to harass them” etc etc

if you have a pe nis you can believe that you are a female and that is the way it goes

but you DONT HAVE THE RIGHT TO USE A “NON PEN IS” bathroom /locker room

THATSSS where the problem for society comes in

We have ALLOWED those who have or dont have a vag to THEN say

b/c of THEIR OWN THOUGHTS THAT

we must live under THEIR thoughts of life

That means someone who feels like they should be able to steal ,,should just go ahead and steal b/c they FEEL IT

the government has taken THAT bit of common sense and said

too bad

if the feel it they can do it

BUT IF YOU “FEEL” LIKE USING WORDS we the left dont like you are in trouble

maga…illegals…..fat etc etc

destroycommunism | May 9, 2024 at 10:55 am

The goal is to upset the male

especially the white male

thats why even though these issues only revolve around .0000001% of the population they have COMMANDED the battlefields aka schools/tv/court rooms etc

Seems to me that we have yet another case of bureaucratic legislating.
And in an area that’s very questionable, constitutionally, to start with.

Maybe this is where Trump can start firing people.

    lc in reply to GWB. | May 9, 2024 at 12:18 pm

    How soon can cases get to SCOTUS to stop the whole trans thing? Sports, bathrooms, pronouns….
    It needs to stop.
    Truth matters and an XY will never be a woman.

biden’s radical democrat run EEOC………..of course they have new guidelines. tell me again how biden’s poll numbers are 30% positive?

I will gladly stand corrected but it is my understanding that guidelines and guidance are not actually the law. They can be challenged (the steps for doing so are probably given in relative law) and the issuing agency may be told to go pound sand by the court having jurisdiction.

The EEOC is relying on employers being fearful of complaints being lodged and fines being levied. Which is how they get away with scuttling the original intent of the law and adding THEIR changes to it.

nordic prince | May 9, 2024 at 6:42 pm

employers who misgender employees…based on their gender identity are liable for sex-based workplace harrasment.

I’m not going to bastardize English just because it might trigger some mentally confused people.

And lest anyone is tempted to think “what’s the big deal – it’s just a little word, a minor concession”… STOP. That’s EXACTLY what they want to think.

Flip the script for a moment: If it were “no big deal” or “just a little word,” why does it bother them when people don’t play their silly word game?

Because it IS a “big deal” to them – and that’s precisely why we need to push back at every opportunity. Nip it in the bud.

Words have meaning, and language is important. Control the language, and you control the thought – one of the major themes in Orwell’s 1984.

This is a hill to die on – make THEM die on this hill. I am sick of “well meaning” people constantly capitulating to these schmucks.

Gorsuch’s utterly indefensible, nonsensical and contemptible opinion in Bostock continues to bear bitter fruit. Read the poorly-reasoned opinion — Gorsuch’s legal “reasoning” was utterly infantile and capricious. It basically stated such circular “logic” as: “Because Title VII prohibits sex discrimination by employers, and, given that trannies define themselves by their sex, we hold that Title VII prohibits employer discrimination against trannies.”

The consequences of expanding Title VII protections to trannies — a group never mentioned in Title VII’s text, nor ever contemplated by its legislative drafters — have been devastating. That wretched Court decision effectively represented SCOTUS’s blessing of obnoxious male, tranny narcissists’ and misogynists’ invasion of women’s and girls’ private spaces and sports.

I reiterate that Gorsuch can never redeem himself for this awful and corrosive bit of jurisprudential capriciousness and fiat.

This will result in employers having to add a third category of restroom for “gender neutral”, burdening them with yet another cost of compliance, to avoid the problems described in today’s comments. This is just like the ADA , which was well-intended, but has become completely unreasonable to accommodate, especially for small businesses.

Dear Legal Insurrection and affiliates,

Please 🙏 organize lawsuits against the EEOC and other organizations who are violating basic civil rights under the Constitution and natural law. Please also publish instructions on how to join, supplement and support such suits.

Thank you.

drsamherman | May 10, 2024 at 12:21 pm

Don’t these EEOC sphincters have anything better to do than making other people’s lives more complicated? For the love of the Almighty, we’re just trying to get along in this Dystopicrat world they have created, and now THIS?