To begin: harassment is a kind of discrimination, the way a dachshund is a kind of dog. There are other kinds of dogs, to be sure, but dachshunds are dogs; there are many ways to discriminate against someone, but harassment is one of them.
Today, a post on my social media feed told of an apparent change in guidance dispensed by the Equal Employment Opportunity Commission removing language including harassment based on sexual orientation, gender identity, or pregnancy from the definition of “sex” with respect to the form of discrimination called “harassment:”
I do not know the person responsible for this social media account, but what I read concerned me and so I went to the EEOC website to look it up. I did not find confirmation of this, but did find something else, specifically a press release about some decisions made by the new Acting Chair of the EEOC. Specifically, the new chair would like the public to know that:
“Pursuant to Executive Order 14166, Acting Chair Lucas has taken the following actions to date:
“Announced that one of her priorities—for compliance, investigations, and litigation—is to defend the biological and binary reality of sex and related rights, including women’s rights to single-sex spaces at work.
“Removed the agency’s “pronoun app,” a feature in employees’ Microsoft 365 profiles, which allowed an employee to opt to identify pronouns, content which then appeared alongside the employee’s display name across all Microsoft 365 platforms, including Outlook and Teams. This content was displayed both to internal and external parties with whom EEOC employees communicated.
“Ended the use of the “X” gender marker during the intake process for filing a charge of discrimination.
“Directed the modification of the charge of discrimination and related forms to remove “Mx.” from the list of prefix options.
“Commenced review of the content of EEOC’s “Know Your Rights” poster, which all covered employers are required by law to post in their workplaces.
“Removed materials promoting gender ideology on the Commission’s internal and external websites and documents, including webpages, statements, social media platforms, forms, trainings, and others. The agency’s review and removal of such materials remains ongoing. Where a publicly accessible item cannot be immediately removed or revised, a banner has been added to explain why the item has not yet been brought into compliance.”
Well now.
Under the United States’ constitutional system of divided government, Presidents have a lot of discretion in how they prioritize enforcement of laws, so long as their prioritization does not directly contradict existing law. President Trump and Acting EEOC Chair Andrea Lucas are free to maintain whatever personal beliefs they like, and it’s probably within their discretion to do what they’re doing with pronouns on EEOC paperwork and communications, but they are not empowered to re-write the law.
The law is now, and has been since 1978, that pregnancy discrimination is sex discrimination. 42 U.S.C. § 2000e(k) provides as follows:
The terms “because of sex” or “on the basis of sex” include, but are not limited to, because of or on the basis of pregnancy, childbirth, or related medical conditions; and women affected by pregnancy, childbirth, or related medical conditions shall be treated the same for all employment-related purposes, including receipt of benefits under fringe benefit programs, as other persons not so affected but similar in their ability or inability to work, and nothing in section 2000e–2(h) of this title shall be interpreted to permit otherwise. This subsection shall not require an employer to pay for health insurance benefits for abortion, except where the life of the mother would be endangered if the fetus were carried to term, or except where medical complications have arisen from an abortion: Provided, That nothing herein shall preclude an employer from providing abortion benefits or otherwise affect bargaining agreements in regard to abortion.
That’s not something that can be altered by an Executive Order, nor by administrative instructions from a political appointee to a high administrative position, such as EEOC Chair Lucas. To change that requires either an Act of Congress or a finding of a Court of competent jurisdiction that this statute violates the Constitution.
Furthermore, sexual orientation discrimination and discrimination based on transgender status, at least, are sex discrimination, at least as of 2020. In the case of Bostock v. Clayton County, 590 U.S. 644 (2020), the U.S. Supreme Court, in an opinion written by Justice Neal Gorsuch, used a textualist approach to interpret Title VII of the Civil Rights Act to apply to discrimination on the basis of sexual orientation. Specifically, Justice Gorsuch wrote for the Court:
Ours is a society of written laws. Judges are not free to overlook plain statutory commands on the strength of nothing more than suppositions about intentions or guesswork about expectations. In Title VII, Congress adopted broad language making it illegal for an employer to rely on an employee’s sex when deciding to fire that employee. We do not hesitate to recognize today a necessary consequence of that legislative choice: An employer who fires an individual merely for being gay or transgender defies the law.
(Slip op., pg. 23, linked above in the citation.)
Earlier in my career, pre-Bostock, I had several heartbreaking times I had to tell a gay or transgendered client that the laws did not protect them despite what appeared to be open and morally offensive discrimination against them. When Bostock was handed down, I was surprised (I expected the decision to go the other way) and glad in my heart, and took it as proof that the moral arc of the universe does indeed eventually bend towards justice. I was not happy because I now had a new category of clients to take on — I was happy because the law had been interpreted in a way that would make the world more moral, more fair, more just.
Today, things look a little murkier politically, but the law remains unchanged since that day.
So the new EEOC guidance may be confusing, even deliberately so (if it is real) and the new guidance issued by Chair Lucas may be within legally permissible limits even if it seems to be at cross-purposes with recently-evolved cultural standards as well as binding statutory and case law. And it might even be the case that under Presidential direction, the EEOC can decline to advise the public that discriminating against someone based on pregnancy or perceived pregnancy, sexual orientation or perceived sexual orientation, or transgender status or perceived transgender status is, by law, discriminating against them based on sex. This includes harassing someone, firing someone, demoting someone, paying someone less than their peers, or any other sort of adverse employment treatment.
But it remains the law of the United States of America that those things are illegal, and actionable, forms of discrimination.
Under our Constitutional system of laws, the President and his appointees lack the power to unilaterally change this. That must be changed by either Congress, or by a new interpretation to the law issued by the Supreme Court of the United States overruling Bostock.
And furthermore, those kinds of bases for discrimination are also in violation of the laws of at least half the States, including Oregon and California. The President, Congress, and even the Supreme Court lack the power to change the laws of the several States, and it would take remarkable legal gyrations indeed for the Federal law to interpose against state laws prohibiting employment discrimination on these bases.
Elections matter. There are policy consequences of a new President taking office, and Presidents have substantial ability to impose different rules based on their political decisions and pressures. But there are limits to this. Presidents cannot unilaterally change our laws, and the law has not been unilaterally changed simply by virtue of some recent Executive Orders, no matter how dramatically written or presented they were.
Workplace discrimination against someone — whether by harassing them or otherwise — on the basis of their pregnancy, sexual orientation, or sexual identity remain contrary to law, and subject to legal challenge. Please don’t hesitate to contact me or another employment lawyer for guidance and help if you think you’re the victim of workplace discrimination, even if recent political changes are confusing and scary to you. You aren’t alone, you aren’t in the wrong, and you don’t have to tolerate discrimination.