EEOC Issues Guidance on Employment Discrimination Based on Sexual Orientation and Gender Identity

The EEOC recently issued a guidance regarding its current position on Title VII rights in light of the one-year anniversary of the U.S. Supreme Court’s ruling in the trilogy of cases that we commonly refer to as the Bostock ruling.  The guidance contains some specific legal truisms that are worth reiterating.

Employers cannot:

  • Discriminate against applicants and employees based on sexual orientation or gender identity with respect to any aspect of employment.
  • Create or tolerate harassment based on sexual orientation or gender identity by anyone, including customers or clients. This may include intentionally and repeatedly using the wrong name and pronouns to refer to a transgender employee.
  • Allow customer preference to influence employment decisions such as hiring, assignment or work, and compensation.
  • Discriminate against an applicant or employee because they do not conform to a sex-based stereotype about feminine or masculine behavior, irrespective of the individual’s sexual orientation or gender identity.
  • Require a transgender employee to dress or use a bathroom in accordance with the employee’s sex assigned at birth.
  • Retaliate against any employee or applicant for opposing employment conduct that the employee reasonably believes to be discriminatory.
  • Discriminate, create, or tolerate harassment against straight or cisgender individuals.
  • Prohibit a transgender worker from dressing or presenting consistent with that person’s gender identity, regardless of customer or co-worker preference or bias.

Action items for employers:

  • If you have not already done so, revise your employee Handbooks to include these “new” protections.
  • Include these protections in your routine harassment/discrimination/retaliation training. (If you do not have a documented training regimen for workers, management and HR staff, start one now.)
  • Be sure that managers and HR are aware that they cannot make decisions regarding employment based upon customer or client preference to work with or be served by workers who have a different sexual orientation or gender identity.

These are admittedly evolving, hot-button issues, especially the use of restrooms, some of which the U.S. Supreme Court specifically declined to address in its Bostock ruling. “Under Title VII, too, we do not purport to address bathrooms, locker rooms, or anything else of the kind.”  My bottom-line advice to HR—stay abreast of the current law and EEOC guidance; ensure that your written policies are in compliance; train your people constantly, and consistently apply your written policies.

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