South Dakota joins lawsuit against new federal guidance on sex-based discrimination

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South Dakota has joined a multi-state lawsuit against new federal workplace harassment guidelines that cover an employee’s gender identity.

The federal Equal Opportunity Employment Commission published updated guidance on April 29. It covers over 70 examples of unlawful harassment, including not just sex-based but also harassment based on race, color, religion, national origin, disability, age and genetic information.

“As we commemorate this year’s 60th anniversary of the Civil Rights Act of 1964, the guidance will help raise awareness about the serious problem of harassment in employment and the law’s protections for those who experience it,” said EEOC Chair Charlotte A. Burrows in a news release.

Among other things, the guidelines say that “harassing conduct based on sexual orientation or gender identity includes … denial of access to a bathroom or other sex-segregated facility consistent with the individual’s gender identity.”

South Dakota Gov. Kristi Noem criticized the guidance Tuesday in a news release.

“With this Guidance, the Biden administration is failing to protect the privacy, safety, and religious rights of all employees,” Noem said.

South Dakota Attorney General Marty Jackley also criticized the guidance.

“The EEOC is unlawfully attempting to burden employers, confuse gender, and limit someone’s ability to refuse sharing a restroom with someone of the opposite sex,” Jackley said.

The lawsuit is filed in federal court in Tennessee. It asks the court to declare the guidance unlawful.

South Dakota joins 17 other states as plaintiffs: Tennessee, Alabama, Alaska, Arkansas, Georgia, Indiana, Iowa, Kansas, Kentucky, Mississippi, Missouri, Nebraska, Ohio, South Carolina, Utah, Virginia, and West Virginia.

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