One Year After Bostock, EEOC Issues Technical Guidance on Sexual Orientation/Gender Identity Discrimination

One year ago, the U.S. Supreme Court’s decision in Bostock v. Clayton County changed the national approach on sexual orientation and gender identity discrimination when it determined that such claims were actionable under Title VII of the Civil Rights Act.  We talked about the decision back then, and while Minnesota had already considered both to be protected classes under the Minnesota Human Rights Act, the change in the federal approach to these kinds of discrimination claims rocked the labor and employment law world.

On the anniversary of the Bostock decision, the EEOC has released technical guidance for both employers and employees on sexual-orientation- and gender-identity-related workplace discrimination issues.  While the EEOC’s policies and opinions do not have the force of law, we can look to the EEOC on its own approach to these types of cases to see which areas it will be seeking to emphasize and enforce in the future.

While much of the guidance provided explains the application of Title VII, there are several areas that employers must take note of and be prepared for should the situation prevent itself.

First and foremost, the EEOC states that employers may not justify discrimination by customer or client preferences.  Furthermore, employers may not discriminate against employees because of a belief that the employee should conform to gender stereotypes.  This includes company dress codes.

For those employers who provide changing rooms for employees, the EEOC “has taken the position that employers may not deny an employee equal access to a bathroom, locker room, or shower that corresponds to the employee’s gender identity.”  Put another way, if an employer has separate bathrooms for men and women, all men, including transgender men, should be allowed to use the men’s facilities and all women, including transgender women, should be allowed to use women’s facilities.

Finally, the EEOC states that in certain circumstances, unlawful harassment can include the misuse of an individual’s preferred pronouns in the workplace.  Now, the conduct must rise to the level of “severe or pervasive,” meaning it likely must include additional hostile behavior in order to be considered unlawful.  But the intentional and repeated use of the wrong name or pronouns for a transgender person could be a contributing factor in a hostile work environment claim.

This guidance may not come as much of a surprise to many employers, but it helps guide workplace policies that comply with Title VII.  If you, or your organization, need assistance in modifying policies to comply with the Bostock decision, or in educating employees on how to make the workplace more inclusive and respectful, contact the Wiley Law Office, for legal advice that works.