EEOC Issues Guidance Regarding Discrimination Based On Sexual Orientation and Gender Identity

July 21, 2021

In reaction to the United States Supreme Court’s decision in Bostock v. Clayton County, which held that the prohibition against sex discrimination in Title VII of the Civil Rights Act of 1964 extends to employment discrimination on the basis of sexual orientation or gender identity, the Equal Employment Opportunity Commission (EEOC) has provided its own informal guidelines outlining workplace protections for LGBTQ employees and job applicants.

Washington, D.C. (July 21, 2021) - In reaction to the United States Supreme Court’s decision in Bostock v. Clayton County, which held that the prohibition against sex discrimination in Title VII of the Civil Rights Act of 1964 extends to employment discrimination on the basis of sexual orientation or gender identity, the Equal Employment Opportunity Commission (EEOC) has provided its own informal guidelines outlining workplace protections for LGBTQ employees and job applicants.

What does the guidance say?

At the outset, this “technical assistance document” explains that Title VII applies to employers with 15 or more employees. Title VII allows religious organizations and religions educational institutions to hire and employ people who share their own religion. While the EEOC will still consider religious exemptions and defenses to discrimination claims, the guide does not explain how that exemption might be applied to transgender or sexual orientation issues.

Title VII prohibits discrimination against individuals on the basis of sexual orientation or gender identity. The guide provides examples in a Q-and-A format of types of conduct that might constitute discrimination or harassment. The guide states that employers cannot discriminate against an employee or applicant because the employee or applicant does not conform to sex-based stereotypes about feminine or masculine behaviors, or because the employer believes customer or clients would prefer to work with individuals with a different sexual orientation or gender identity. An employer cannot require an employee to dress in accordance with their assigned sex at birth, as that would constitute sex discrimination.

The guide also addresses sex-segregated bathrooms, locker rooms, and showers. The guide explains that employers are still permitted to offer sex-segregated bathrooms, locker rooms, and showers; but if an employee identifies as a certain gender, the employer cannot deny that employee access to the bathroom, locker room, or shower that corresponds with that individual’s gender identity. The guide explains that if the employer has sex-segregated facilities, “all men (including transgender men) should be allowed to use the men’s facilities and all women (including transgender women) should be allowed to use the women’s facilities.”

The guide goes on to state that use of pronouns or names inconsistent with the employee’s gender identity could be considered harassment. Specifically, while accidental misuse of a transgender employee’s name or pronouns would not constitute harassment, “intentionally” and “repeatedly” misusing the wrong name and/or pronouns for an employee could contribute to an unlawful hostile work environment and be sufficient to establish harassment.

What does this mean for employers?

The publication itself does not have the force and effect of law and is not meant to bind the public in any way. The EEOC has merely published this guidance as a way to help employers stay knowledgeable about what the law requires and to help employees know their rights.

For employers, it is essential, now more than ever, to adequately train staff on how these laws apply to their workforce. For example, while an unintentional slip of a wrong pronoun would not rise to any actionable level, if a manager is repeatedly using the wrong pronoun for a transgender employee, such conduct could constitute unlawful harassment. Employers should evaluate their harassment and discrimination training practices, as well as their policies and procedures, to ensure that they are adequately training managers and supervisors and that their policies and practices are in compliance with the Bostock opinion and Title VII.

Lewis Brisbois’ Labor & Employment attorneys are available to provide assistance and counseling on matters relating to Title VII. For more information on this topic, contact the author or editor of this post, or visit our Labor & Employment Practice page to find an attorney in your area.

Author:

Ava F. Freund, Associate

Editor:

Ashleigh Reif Kasper, Partner