Pronouns: What Nevada employers need to know in a rapidly changing landscape

In response to recent administrative orders eliminating Diversity, Equity and Inclusion initiatives, the United States Equal Employment Opportunity Commission (EEOC) is quickly making changes at the federal level, including the removal of preferred pronouns from EEOC email communications and forms, as well as a review of workplace postings.

The EEOC has also begun reframing its guidance to private industry by updating anti-harassment 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.” 

What this means to Nevada employers

Despite recent changes at the EEOC, Nevada state law expressly prohibits this conduct. 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.

To navigate this rapidly evolving legal landscape, Nevada employers should keep the following considerations in mind. 

First, despite recent changes at the EEOC, existing U.S. Supreme Court precedent holds that discrimination and harassment based on one’s sexual orientation, gender identity, or gender expression violates federal anti-discrimination laws.  As long as this binding law remains in effect, LGBTQ+ employees will continue to be able to bring lawsuits in federal court, asserting discrimination claims under federal law.

Second, even if the U.S. Supreme Court were to overturn its prior interpretation of federal law, this would not impact Nevada state law.  LGBTQ+ employees can still file charges of discrimination with the Nevada Equal Rights Commission (the Nevada state equivalent of the federal EEOC) and file discrimination lawsuits in Nevada state court. 

Third, since Nevada state law expressly protects LGBTQ+ employees from employment discrimination, employers should remain diligent in ensuring that sexual orientation, gender identity, and gender expression do not form the basis of employment decisions and that workplaces are free from discrimination and harassment, including harassment arising out of the refusal to use one’s preferred pronouns.

Finally, it is important to keep in close contact with employment counsel on these issues given the evolving legal landscape.  By conferring with counsel prior to taking action, businesses can ensure that they are up to date on applicable law and prepared to defend their actions on both a state and federal level.