EEOC’s New Guidance Regarding Sexual Orientation and Gender Identity Workplace Discrimination

Brooks Pierce
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Brooks Pierce

The U.S. Equal Employment Opportunity Commission (EEOC) recently announced new resources to aid employers and employees in understanding the EEOC’s position regarding sexual orientation and gender identity discrimination. These new resources include a landing page, a technical assistance document, updated FAQs, updated fact sheet, and a summary of recent EEOC litigation.

Last summer, in Bostock v. Clayton County, the U.S. Supreme Court held that terminating an employee on the basis of their sexual orientation or gender identity violated the sex discrimination prohibition found in Title VII of the Civil Rights Act of 1964 (Title VII). The EEOC and other courts have interpreted Bostock to mean that all forms of discrimination and harassment prohibited by Title VII’s sex discrimination provision are likewise prohibited by Title VII when done on the basis of sexual orientation or gender identity. The EEOC’s new resources provide clarity as to best practices for employers subject to Title VII.

Employers subject to Title VII should review the new resources and begin taking steps to comply.

Training

Employers should consider training employees and supervisors on what illegal sexual orientation and gender identity discrimination and harassment look like. The EEOC has provided the following examples:

  Discrimination Harassment
Sexual Orientation
  • Firing or demoting employees because of their sexual orientation
  • Firing or demoting employees because they threatened to take legal action because of unfair treatment at work related to their sexual orientation
  • Offensive jokes or comments related to sexual orientation
  • Homophobic slurs or name calling
  • Unwelcome touching or sexual gestures
Gender Identity
  • Refusing to hire an applicant after learning about the applicant’s gender identity
  • Refusing to allow an employee to use the restroom associated with their gender identity
  • Firing an employee for announcing plans to transition
  • Requiring employees to appear at work as the gender they were assigned at birth
  • Repeated, deliberate use of the wrong name or gender pronouns (e.g., he or she)
  • Shaming an employee for not acting or dressing in a way that reflects the sex the employee was assigned at birth
  • Refusing to allow an employee to use the restroom associated with the gender the employee identifies with
  • Offensive comments or conduct related to gender identity

This training would also be a good opportunity to remind employees of the reporting procedure for discrimination or harassment of any kind implemented with the employer.

Handbooks and Policies

Employers should update their employee handbooks and policies regarding discrimination and harassment to include protections against sexual orientation and gender identity discrimination. During this review, employers should also ensure reporting provisions are accessible to all employees regardless of sexual orientation or gender identity.

Employers should also consider revising their grooming and dress codes to be gender neutral. Is there a provision that only “women” may wear their hair long or wear earrings? Are “men” required to wear ties? Consider the rationale behind such provisions and whether they are based on sex stereotypes or bona fide occupational qualifications.

Employers may want to develop a plan for what they will do if an employee “comes out” or plans to “transition” after beginning work. How will the employer update the employee’s name plate, email address, signature line, and website bio? Will the employer inform other employees? What will the employer do if another employee or customer expresses disapproval? What sort of FMLA or ADA accommodations will be considered if the employee is undergoing medical treatment related to their transition?

Forms and Identification Documents

Employers should review and update their form documents to take into account employees of varying sexual orientations and gender identities. For example, an employer should review its application and human resources (HR) forms to examine whether there are checkboxes leaving out certain identities or relationships. Is there a “write in” option for gender other than “M” or “F”? Do HR forms have a place to record a name different than an employee’s legal name? Do employees have to bear the expense of updating their website profiles, work photos and IDs, or other work-related materials if they come out, transition, or have significant changes in appearances while employed? Employers should also keep in mind that some forms may require legal name and legal gender to be recorded and may not be changed absent a court order or other government record.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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