The Respect for Marriage Act is now law, upholding recognition of interracial and same-sex marriages, and the U.S. Supreme Court has held that sexual orientation and gender identity discrimination in the workplace is illegal, but what rights do LGBTQ+ employees have in the workplace and how inclusive must employers be? The EEOC’s attempt to provide employers guidance has been thwarted, most recently by a federal court in Texas, and earlier this year in a legal challenge regarding state sovereignty rights. In the meantime, employers are left to strike a delicate balance between non-discrimination, inclusion and accommodation, under applicable and sometimes competing federal and state mandates.

The EEOC’s LGBTQ+ Technical Assistance Document

The EEOC guidance under attack, Protections Against Employment Discrimination Based on Sexual Orientation or Gender Identity, is in Q&A format, and is the agency’s attempt to “provide clarity to the public” regarding what it considers to be “existing requirements under the law or agency policies,” while the EEOC concedes that its guidance is not legally binding. According to the EEOC, sex-based discrimination under Title VII of the Civil Rights Act includes:

• treating employees differently based upon sex-based stereotypes about feminine or masculine behavior;
• denying equal access to a bathroom, locker room, or shower that corresponds to the employee’s gender identity;
• prohibiting an employee from dressing or presenting in a manner consistent with the employee’s gender identity; and
• intentionally and repeatedly using pronouns or names inconsistent with an individual’s gender identity.

The EEOC’s guidance is based upon its interpretation of the Supreme Court’s decision in Bostock v. Clayton County, Georgia, holding that illegal sex discrimination includes discrimination based upon an employee’s sexual orientation or gender identity, as well as its own established “legal” positions and precedent. Yet, the EEOC was accused, most recently by the Texas federal court, of exceeding its authority and not following proper procedural channels in attempting to regulate “conduct” (like dress code, bathrooms, and pronouns) beyond prohibition of discrimination “because of” an employee’s LGBTQ+ “status.”

Charting A Course For LGBTQ+ Workplace Policies

With more conflicts likely to arise, and as uncertainty looms regarding the scope of protection for LGBTQ+ employees, employers must strive to balance the interests of their employees while maintaining a nondiscriminatory and inclusive workplace. Employers may benefit from learning how and when to enforce workplace policies or initiatives in an accommodating manner, and to provide training to identify, prevent, and correct sexual orientation and gender identity discrimination, to stay ahead of the issue. Although the EEOC’s LGBTQ+ guidance has been under fire, employees continue to complain about, and privately litigate, claims of harassment and discrimination based upon sexual orientation and gender identity discrimination. As a result, employers should take reasonable measures, based upon its own specific circumstances, to make their workplaces as inclusive, accommodating, and affirming as possible, while adhering to federal and state mandates that are in some cases at odds.

Diversity Initiatives At Work

One area where this balancing act is crucial is in connection with an employer’s diversity initiatives. As a part of marketing efforts, many employers choose to roll out inclusion campaigns or diversity initiatives to appeal to a range of customers and their employees. But can employers require all employees to participate in inclusion campaigns? Mandating participation in diversity initiatives or inclusion campaigns can prove problematic when inconsistent with an employee’s sincerely held religious beliefs. In a recent case which demonstrates the tension of competing interests, two employees filed a religious discrimination lawsuit against a grocery store chain when a request for religious accommodation went unanswered. The employees requested a religious accommodation from a dress code requirement to wear an apron that featured a logo that resembled the LGBTQ pride flag stating that the logo conflicted with their religious beliefs. While the case settled, it raises issues that employers will likely see in the future including the need for a clear policy to request religious accommodations, particularly in light of the uncertainty surrounding the scope of prohibited sexual orientation and gender identity discrimination. Most importantly, while the EEOC guidance hangs in limbo, employees continue to file and resolve claims with the EEOC regarding sexual orientation and gender identity.

What Can Employers Do?

With the everchanging interpretation of the laws and LGBTQ+ rights in turmoil, ringing in the new year is also a good time for employers to ring in new or updated workplace policies and training, including LGBTQ+ inclusive policies. Employers should remain mindful that workplace incivility that does not rise to the level of discrimination can lead to it. Moreover, workplaces thrive when employee morale is heightened and employees feel valued.