Jonathan Skrmetti (Photo: tncourts.gov)

Tennesseeโ€™s Attorney General Jonathan Skrmetti believes that the Equal Employment Opportunity Commissionโ€™s (EEOC) โ€œProposed Enforcement Guidance on Harassment in the Workplaceโ€ is โ€œarbitrary and capricious,โ€ and โ€œunconstitutional.โ€

On November 1st, Skrmetti, on behalf of the state of Tennessee along with 19 other state attorneys general, released comments regarding the EEOCโ€™s new guidance, as he and others believe it would โ€œunleash unconstitutional chaos in the nationโ€™s workplace.โ€

โ€œThe EEOC has once again proposed enforcement guidance that extends beyond its statutory authority and threatens the First Amendment rights of millions of Americans,โ€ Skrmetti said. โ€œTennessee has successfully challenged EEOCโ€™s unlawful guidance in the past and stands ready to do so again.โ€   

Skrmetti specifically called out how the new guidelines have broadened โ€œsex-based harassmentโ€ to include โ€œintentional and repeated use of a name or pronoun inconsistent with the individualโ€™s gender identity.โ€ The new guidelines also include bathroom bans and discrimination.

โ€œExamples include epithets regarding sexual orientation or gender identity โ€ฆ or the denial of access to a bathroom or other sex-segregated facility consistent with the individualโ€™s gender identity,โ€ the guidelines said.

In the letter, Skrmetti reminded the EEOC that the state of Tennessee was joined by other Republican state attorneys general in 2021 to bring a lawsuit against the U.S. Department of Education along with the commission, which โ€œadvanced a vastly expanded view of Title VII liability for the nationโ€™s employers.โ€

โ€œ[EEOC] Chair [Charlotte] Burrows unilaterally issued that guidance in 2021 without opportunity for comment, and the U.S. District Court for the Eastern District of Tennessee enjoined it,โ€ the letter said.

The letter lists a number of reasons as to why Skrmetti and others oppose the new guidelines. The text asserts that these new proposals โ€œexceed the agencyโ€™s Title VII authority,โ€ and that they violate the United States Constitution.

โ€œFree-speech limits do not allow EEOC to compel employers to โ€˜speak its preferred messageโ€™ against their will,โ€ the letter said. It also mentioned that employees and employers who do comply to the EEOCโ€™s โ€œchosen gender ideology orthodoxyโ€ are potentially compromising their religious freedoms.

Skrmetti and others have urged the EEOC to โ€œmake appropriate changes.โ€ They have also stated that they are prepared to pursue legal action.