A year ago, the Supreme Court deemed it unlawful to otherwise discriminate against individuals based on their sexual orientation or gender identity in Bostock v. Clayton County, Georgia, a decision that has become a historic milestone for LGBTQ+ rights. The Court explained that an employer who discriminates based on sexual orientation or transgender status necessarily discriminates based on sex because the discrimination is based on the masculine or feminine stereotypes assigned to a specific sex. The U.S. Equal Employment Opportunity Commission (EEOC) and other courts have interpreted Bostock to extend the same Title VII prohibition against sex discrimination and harassment to cover sexual orientation and gender identity discrimination and harassment.
The EEOC observed Bostock’s one-year anniversary by announcing the release of new educational resources that explain employees’ right to be free from sexual orientation and gender identity discrimination in employment. The new resources include a landing page and a technical assistance document to help the public understand Bostock and the EEOC’s position on sexual orientation and gender identity discrimination. The landing page consolidates statistics, fact sheets, information about the scope of protections against discrimination, information about harassment and retaliation, and the steps for filing a discrimination charge with the EEOC. The information does not provide a new policy but rather provides concise, accessible information about existing requirements under the law.
Notably, the EEOC’s opinions do not have the force of law but are highly influential in how courts interpret employment law.
The EEOC’s resources provide employers with clarity on the best practices to implement in the workplace to avoid sexual orientation or gender identity discrimination claims. Employers should be aware of several sections to avoid potentially problematic policies or practices in the workplace.
First, the EEOC clarifies that the protection against sexual orientation and gender identity discrimination applies to non-LGBTQ+ job applicants and employees in addition to LGBTQ+ community members. For example, it is unlawful for an employer to discriminate against employees because they identify as straight or cisgender (someone whose gender identity matches their sex assigned at birth).
The EEOC states that an employer may not justify sexual orientation or gender identity discrimination based on actual or perceived client preferences. Discriminatory acts may include, for example, directing LGBTQ+ employees toward certain stores or geographic areas, or keeping these employees out of public-facing positions.
Employers also may not discriminate based on the belief that an employee acts or appears in a way that is contrary to a sex-based stereotype about masculine or feminine behavior. This includes discriminatory company dress codes and grooming standards – employers cannot prohibit a transgender person from dressing or presenting themselves consistent with their gender identity.
As for bathrooms, locker rooms, and showers, the EEOC has taken the stance that employers may not deny an employee equal access to facilities that correspond with the employee’s gender identity. Thus, if an employer offers separate facilities for men and women, all men, including transgender men, should have access to the men’s facilities and all women, including transgender women, should have access to the women’s facilities.
Lastly, the EEOC states that severe or pervasive unwelcome conduct based on gender identity constitutes unlawful harassment. This could include using pronouns or names that are inconsistent with an individual’s gender identity. Though accidental misuse of an individual’s preferred name and pronouns is not unlawful, intentional and repeated misuse could be “severe or pervasive” and consequently contribute to an employee’s hostile work environment claim.
Where Do Employers Go From Here?
Employers may use this EEOC guidance to revamp their practices in employee trainings, handbooks and policies, and form and identification documents. Below are some active steps employers can take in the workplace to reduce the risk of sexual orientation or gender identity discrimination. These steps do not serve as an exhaustive list to prevent sexual orientation or gender identity discrimination claims, but are a useful starting place.
Training: Employers should implement educational trainings to explain how sexual orientation and gender identity discrimination or harassment may materialize in the workplace and to remind employees of the proper procedure for reporting discrimination or harassment.
Handbooks and Policies: Employers should update any handbooks or policies to prohibit sexual orientation and gender identity discrimination and should ensure both that the materials and reporting procedures are easily accessible and in plain language. Additionally, employers should ensure their grooming and dress codes are based on legitimate occupational qualifications and not on unlawful stereotypes for each sex.
Form and Identification Documents: Employers should review their form documents and consider whether the documents exclusively ask employees to identify as either male or female. If so, employers should update their documents to accurately represent inclusive gender identities, potentially by adding a write-in option for non-gender-conforming individuals.
The timely EEOC guidance serves as an important reminder of employees’ right to be free from workplace discrimination based on sexual orientation and gender identity. Employers should review their workplace policies to ensure compliance with Bostock and should contact their attorneys if it is necessary to modify any policies or forms, or to seek advice on inclusive employee training.