In his first few weeks in office, President Donald Trump has demonstrated that one of his key policy initiatives is the elimination of what some call “gender ideology,” or the recognition of gender identities other than simply male and female.
EEOC Acting on EO
Shortly after taking office, the president issued Executive Order (EO) 14168, calling for the elimination of diversity, equity, and inclusion (DEI) initiatives in the federal government and beyond. Following the order, Equal Employment Opportunity Commission (EEOC) Acting Chair Andrea Lucas has implemented a variety of actions to remove from EEOC processes and procedures any references to sexes other than male and female.
For example, preferred pronouns have been removed from EEOC email communications. EEOC forms no longer provide an option to select a gender other than male or female. Required workplace postings are being reviewed to scrub them of any reference to non-traditional gender identities. The agency has also directed its local field offices that any charge asserting a discrimination claim based on gender identity or expression must be sent to EEOC headquarters for review.
The EEOC has also begun reframing its guidance to private industry. The agency is in the process of updating antiharassment guidance to eliminate prior instruction that harassment can consist of “repeated and intentional use of a name or pronoun inconsistent with [an] individual’s known gender identity.” According to Lucas, “Biology is not bigotry. . . Sex is binary (male and female) and immutable. It is not harassment to acknowledge these truths—or to use language like pronouns that flow from these realities, even repeatedly.”
Not So in Nevada
Nevada state law, however, expressly prohibits the very type of conduct the president and Acting Chair Lucas are trying to render lawful. Nevada Revised Statutes 613.330 states that it is unlawful for employers to discriminate against or permit the harassment of employees based on characteristics including one’s “gender identity or expression.”
Businesses that violate this state law can be liable for lost wages, emotional distress, other compensatory damages, attorneys’ fees, and punitive damages.
Key Points to Remember
With Nevada state law standing firm on the protection of LGBTQ+ employees, and federal authorities moving to eradicate such protections, how can Nevada businesses avoid being caught in the middle? A few points are worth noting:
First, remember that the EEOC doesn’t make or establish law. Since 2020, existing precedent from the U.S. Supreme Court has confirmed that discrimination and harassment based on one’s sexual orientation, gender identity, or gender expression does indeed violate federal antidiscrimination laws. While the EEOC is moving away from enforcing this binding law, until such time as the law is overturned by the Supreme Court, LGBTQ+ employees will remain able to file lawsuits, in federal court, asserting discrimination claims under federal law.
Second, even if the Supreme Court (which is predominantly made up of Republican appointees) were to overturn its prior interpretation of federal law, this won’t affect Nevada state law. LGBTQ+ employees can still file discrimination charges with the Nevada Equal Rights Commission (the Nevada state equivalent of the federal EEOC) and file discrimination lawsuits in Nevada state court. Since the Nevada legislature is currently under Democratic control, Nevada’s antidiscrimination protections are unlikely to lessen in the near future.
Third, since Nevada state law expressly protects LGBTQ+ employees, you should remain diligent in ensuring that sexual orientation, gender identity, and gender expression do not form the basis of employment decisions. Further, Nevada employers should continue to prohibit harassment based on these characteristics—including harassment based on the refusal to use preferred pronouns.
Finally, it’s important to keep in close contact with employment counsel on these issues. If his first weeks in office are any indication, President Trump can be expected to continue to attack DEI initiatives and LGBTQ+ protections at every opportunity. By conferring with counsel before taking action, you can ensure you are up to date on applicable law and prepared to defend your actions on both a state and federal level.
Shannon S. Pierce is an attorney with Fennemore Law in Reno, Nevada, and can be reached at spierce@fennemorelaw.com.