The Equal Employment Opportunity Commission (EEOC) has issued new resources and informal guidance regarding sexual orientation and gender identity discrimination in the workplace. On the anniversary of the U.S. Supreme Court’s landmark Bostock decision—which held that firing individuals because of their sexual orientation or transgender status violates Title VII’s prohibition on discrimination because of sex—the EEOC released materials to better educate employers on key issues faced by LGBTQ+ workers, including restroom access and use of pronouns in the workplace.
In particular, since the Bostock ruling, many employers were left questioning how to address the issue of providing appropriate restroom access to transgender employees. The EEOC clarified that an employer may continue to maintain separate restrooms, locker rooms and showers for men and women, but an employer must not prevent an employee from using the restroom that corresponds with the employee’s gender identity. Regardless of the personal beliefs or claimed discomfort of other employees, an employer cannot require an employee to use the facilities associated with the employee’s biological gender or prevent an employee from using the facilities associated with the employee’s gender identity. This policy, however, does not impact employers that utilize unisex facilities open to all individuals.
The EEOC’s new guidance additionally recognizes the impact of misgendering of employees. Misgendering occurs when an individual is addressed by a pronoun or name that does not reflect their gender identity. The EEOC takes the position that intentional and repeated use of a name or pronoun that is not an employee’s preferred pronoun (e.g., she, her, he, him, they or them) could create a hostile work environment in violation of Title VII. Significantly, the EEOC emphasizes that accidental misuse of preferred pronouns does not rise to the level of severe and pervasive misconduct which could contribute to an unlawful hostile work environment.
The EEOC’s technical guidance does not have the effect of binding law, but it provides employers with insight into how certain issues would be treated in the future, at least with respect to the EEOC’s interpretation of Bostock and Title VII. Notably, the new guidance was issued exclusively by EEOC Chair Charlotte Burrows, rather than by a vote of the full five-member Commission. Considering the unilateral action taken by Ms. Burrows, there has been controversy among the board regarding whether she had authority to release the guidance. Nevertheless, employers should pay special attention to the guidance as they approach the complex issues surrounding gender identity discrimination in the workplace, including the conflict with religious or personal beliefs. In our ever-changing society, it is imperative that employers continue to remain knowledgeable regarding all forms of discrimination and provide quality training on workplace discrimination and reporting.