Labor & Employment Law Daily EEOC provides new resources on LBGTQ+ rights
Monday, June 21, 2021

EEOC provides new resources on LBGTQ+ rights

By Pamela Wolf, J.D.

A new Q&A document addresses issues including workplace attire; bathroom, locker room, and shower use; and misuse of pronouns and names.

Observing LGBTQ+ Pride Month and the anniversary of the U.S. Supreme Court’s June 15, 2020, ruling in Bostock v. Clayton County, the EEOC announced new resources 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.

The resources include a new landing page and a new technical assistance document, “Protections Against Employment Discrimination Based on Sexual Orientation and Gender Identity.” The EEOC noted that neither of these resources state new EEOC policy; rather, they rely on previously voted positions adopted by the Commission.

About the Supreme Court’s ruling.Bostock involved a trio of cases alleging discrimination against LGBTQ+ workers, which the Supreme Court decided together in a single opinion. In one case, a child welfare services coordinator was fired after his employer learned he had joined a gay softball league. In a second case, a skydiving instructor was fired after his employer learned that he was gay. In the third case, a funeral director was fired after her employer learned that she was going to transition from male to female. In deciding these cases, the Supreme Court held that employment discrimination based on sexual orientation or transgender status is discrimination “because of sex” and is therefore unlawful under Title VII.

Therefore, the Supreme Court held that 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. The Court explicitly reserved some issues for future cases.

New landing page. The EEOC’s new landing page consolidates information the scope of protections against discrimination based on sexual orientation and gender identity, as well as information about harassment, retaliation, and how to file a charge of discrimination with the EEOC. There are also links to EEOC statistics and updated fact sheets about recent EEOC litigation and federal sector decisions concerning sexual orientation and gender identity discrimination.

New Q&As. The EEOC’s new technical assistance document—with its series of questions and answers—is intended to help the public understand the Bostock decision and established EEOC positions on the laws that the agency enforces. The Q&As address issues regarding Title coverage of employers, employees, and types of discriminatory actions that may fall under the statute’s protections, as well as issues more closely related to discrimination based on sexual orientation and gender identity.

Particularly notable for employers are these points made by the Q&As:

  • Workplace attire. A covered employer may not require a transgender employee to dress in accordance with the employee’s sex assigned at birth. Prohibiting a transgender person from dressing or presenting consistent with that person’s gender identity would constitute sex discrimination.
  • Bathrooms, locker rooms, and showers. An employer may have separate, sex-segregated bathrooms, locker rooms, or showers for men and women. Courts have long recognized that employers may have separate bathrooms, locker rooms, and showers for men and women, or may choose to have unisex or single-use bathrooms, locker rooms, and showers. The Commission’s position is that where 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.
  • Pronouns and names. The use of pronouns or names that are inconsistent with an individual’s gender identity may amount to harassment, which includes unwelcome conduct that is based on gender identity. 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. In Lusardi v. Department of the Army, the Commission explained 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.

“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 v. Clayton County 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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