CNA—The U.S. Catholic bishops told the Biden administration last week that its newly proposed guidance on sex-based harassment in the workplace is unconstitutional because it bans speech opposing abortion and expressing certain views on contraception, same-sex relationships, and gender identity.
The proposed guidance advises “sex-based harassment … also can include harassment based on a woman’s reproductive decisions, such as decisions about contraception or abortion.”
Additionally, it says that “sex-based harassment includes harassment on the basis of sexual orientation and gender identity, including how that identity is expressed.”
U.S. Bishops say proposed guidance would “CHILL” free speech
The U.S. bishops’ Office of the General Counsel said in an Oct. 27 letter to the U.S. Equal Employment Opportunity Commission, the agency that proposed the guidance, that the proposed guidance would “chill” free speech.
The U.S. Equal Employment Opportunity Commission is an agency charged with enforcing federal nondiscrimination regulations and laws, such as Title VII of the Civil Rights Act of 1964, which prohibits discrimination against employees and applicants based on race, color, religion, sex, and national origin.
“We believe that reading Title VII to chill or prohibit speech that upholds the sanctity of life, the nature of conjugal relationships, or the created, bodily reality of human beings is not supported by the text of Title VII and likely runs afoul of constitutional rights of speech, expressive association, and religious exercise,” the letter said.
The bishops’ letter acknowledges that Title VII forbids workplace harassment and discrimination based on sex but adds that talking about one’s opposition to abortion should not be forbidden because “it is not based on sex.”
The letter from the general counsel cites the 1993 Supreme Court decision in Bray v. Alexandria Women’s Health Clinic, which ultimately decided that pro-life demonstrators who obstructed access to abortion clinics didn’t violate the civil rights of women seeking an abortion.
“As the court pointed out, sex-based discrimination ‘demand[s] … at least a purpose that focuses upon women by ‘reason of their sex,’ and opposition to abortion is not by reason of an individual’s sex,” the letter said.
The letter also said that the opinion in Bray, which was written by Justice Antonin Scalia, “rejected the notion that opposition to abortion functions as a proxy or surrogate for sex-based discrimination.”
Citing Scalia’s opinion, the letter said: “[O]pposition to voluntary abortion cannot possibly be considered … an irrational surrogate for opposition to (or paternalism towards) women. Whatever one thinks of abortion, it cannot be denied that there are common and respectable reasons for opposing it, other than hatred of, or condescension toward (or indeed any view at all concerning), women as a class — as is evident from the fact that men and women are on both sides of the issue.”
The letter said: “It follows that workplace speech opposing abortion does not violate Title VII.”
Referencing the overturning of Roe v. Wade, the letter said: “It is inconceivable that our nation’s highest court, having just recently held that the Constitution does not enshrine a right to an abortion, would now interpret Title VII to forbid or chill workplace speech on this subject.”
The bishops’ letter said that federal courts on the lower levels are “divided” on the question of whether Title VII’s protections against sex-based discrimination include an individual’s contraceptive use.
However, it went on to say that the only appellate level court to rule on the issue has said that contraceptives are not protected under sex-based discrimination in Title VII, citing In re Union Pacific Railroad Employment Practices Litigation from the 8th Circuit.
In that 2007 case, the court held that a Nebraska company that didn’t include prescription contraceptive coverage was not in violation of discrimination under Title VII.
The letter said that “workplace speech opposing artificial contraception, like speech opposing abortion, is not based on sex and therefore does not constitute sexual harassment under Title VII.”
“As it happens, both men and women may practice or refrain from practicing artificial means of preventing conception, whether temporarily (including through the use of condoms) or permanently (sterilization), further undermining the claim that opposition to artificial contraceptives is based on sex,” the letter said.
Additionally, the letter said that forbidding workplace speech opposing contraceptives would pose the same constitutional issues as with abortion.
“For these reasons, we believe that references to contraceptives in the guidance are problematic and should be removed,” the letter said.
Gender identity and sexual orientation
The bishops raised two specific issues in regard to the commission’s inclusion of gender identity and sexual orientation.
“First, the commission comes perilously close to reading Title VII as a speech code by suggesting that ‘misgendering’ an employee (that is, referring to an employee by their actual sex) or uttering critical speech on the issue of gender identity or sexual orientation may constitute sexual harassment,” the letter said.
“Second, the proposed guidance reads Title VII to require that at least some men be allowed in private areas reserved to women and that at least some women be allowed in private areas reserved for men, to include locker rooms and restrooms,” the letter said.
“Respectfully, we believe the proposed guidance is wrong on both counts,” it said.
Additionally, the letter said that an individual may have a strong interest in refusing to identify someone as a gender incongruent with their biological sex because of religious or philosophical beliefs.
The letter said that interpreting Title VII to restrict speech on these issues is both “content-based” and “viewpoint-based” because “it prohibits speech on one side of the issue but not the other.”
The letter also addressed the problem of sex-specific workplace areas, saying that the proposed guidance is “not correctly applied to require employers to permit the admission of persons of one sex to areas, such as restrooms and dressing areas (e.g., locker rooms), that for reasons of privacy (and even for the prevention of sexual harassment) are lawfully reserved to members of the opposite sex.”
Wednesday is the last day the U.S. Equal Employment Opportunity Commission will continue accepting comments on its proposed guidance.