New EEOC Document on Sexual Orientation and Gender Identity

Employment Law

In recognition of LGBTQ+ Pride Month and the anniversary of the Bostock v. Clayton County ruling, the Equal Employment Opportunity Commission (EEOC or Commission) released a new technical assistance document addressing issues including workplace attire; pronouns and names; and the use of bathrooms, locker rooms and showers.

“Protections Against Employment Discrimination Based on Sexual Orientation and Gender Identity” (accompanied by a new landing page on the EEOC website) offers guidance for employers and employees in the form of a Q&A document.

The agency began with a refresher about the Bostock decision, where the Supreme Court held in June 2020 that to discriminate against a person based on sexual orientation or transgender status is to discriminate against that individual based on sex. Therefore, Title VII makes it unlawful for a covered employer to take an employee’s sexual orientation or transgender status into account in making employment-related decisions.

While the document discusses the protections of Title VII generally, it also covers three often tricky issues related to LGBTQ+ employees.

  • Workplace attire. Prohibiting a transgender person from dressing or presenting consistent with that person’s gender identity would constitute sex discrimination, the EEOC explained. And whether or not an employer knows an employee’s sexual orientation or gender identity, employers are not allowed to discriminate against an employee because that employee does not conform to a sex-based stereotype about feminine or masculine behavior, the agency added.
  • Bathrooms, locker rooms and showers. Employers have the right to have separate, sex-segregated bathrooms, locker rooms and showers for men and women, the EEOC stated, although the Commission has taken the position that employers may not deny an employee equal access to a bathroom, locker room or shower that corresponds to the employee’s gender identity. “In other words, if an employer has separate bathrooms, locker rooms or showers for men and women, 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,” according to the document.
  • Pronouns and names. The use of pronouns and names that are inconsistent with an individual’s gender identity could be considered harassment in certain circumstances, the agency said. “Unlawful harassment includes unwelcome conduct that is based on gender identity,” the EEOC wrote. “To be unlawful, the conduct must be severe or pervasive when considered together with all other unwelcome conduct based on the individual’s sex including gender identity, thereby creating a work environment that a reasonable person would consider intimidating, hostile or offensive.” The document referenced a 2015 EEOC decision in which the Commission found that although accidental misuse of a transgender employee’s preferred name and pronouns does not violate Title VII, “intentionally and repeatedly using the wrong name and pronouns to refer to a transgender employee could contribute to an unlawful hostile work environment.”

To read the EEOC document, click here.

Why it matters: The EEOC was careful to note that the new document does not state new policy, instead relying on previously discussed positions adopted by the Commission. The agency was clear that the new resources are intended to educate employees, applicants and employers about the rights of all employees—including lesbian, gay, bisexual and transgender workers—to be free from sexual orientation and gender identity discrimination in employment. “All people, regardless of sexual orientation and gender identity, deserve an opportunity to work in an environment free from harassment or other discrimination,” EEOC Chair Charlotte A. Burrows said. “The Supreme Court’s decision in [Bostock] is a historic milestone that resulted from the struggle, sacrifice and vision of many brave LGBTQ+ individuals and allies who had championed civil rights for the LGBTQ+ communities. The new information will make it easier for people to understand their rights and responsibilities related to discrimination based on sexual orientation and gender identity.”



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