EEOC provides new guidance on sexual orientation and other gender issues

Excerpted from a Bradley blog by Cortlin Bond and Anne R. Yuengert

You may recall last summer the U.S. Supreme Court’s decision in Bostock v. Clayton County, Georgia that held discrimination based on sexual orientation is prohibited by Title VII. After that decision, we encouraged you to update your EEO and harassment policies, update your application forms and websites, train your supervisors and managers, and consider whether to prepare a policy or guidelines for transgender employees who are or will be transitioning.

Now the EEOC — or more specifically the EEOC’s Chair Charlotte Burrows — has published guidance on what may constitute discrimination based on sexual orientation and/or gender identity. There is drama around whether Burrows sought the approval of the other members of the EEOC before issuing the guidance, whether the guidance exceeds the scope of Bostock, and whether the guidance violates employers’ and employees’ religious and speech protections. As of now we assume this is the EEOC’s stance on the issues.

The Guidance
The EEOC’s technical assistance document recaps the Bostock decision and provides, in Q&A format, guidance on several issues. Here’s a summary of the guidance:

• Customer preferences do not trump an employee’s rights. Employers are not allowed to segregate or discriminate against employees based on actual or perceived customer preferences as to sexual orientation or gender identity (or other protected classes).
• Dress codes are fine, but you must allow a transgender person to dress consistent with his or her identity. Employers may not discriminate against employees based on non-conformity with sex-based stereotypes.
• Use an employee’s preferred name. Accidental and occasional mistakes are one thing, but severe or pervasive misuse of a transgender employee’s preferred name and pronouns could violate Title VII.
• Separate, sex-segregated bathrooms and locker rooms are OK, but employers may not preclude transgender men from using the men’s facilities and transgender women from using the women’s facilities.

For other materials regarding the bathroom issue and government recommendations regarding transgender employees, see the EEOC’s fact sheet, OSHA’s guide, and the S. Office of Personnel Management’s guide.

The EEOC’s guidance further suggests that whether or not employers know their employee’s sexual orientation or gender identity may be no defense for discrimination.

What Does This Mean?
Update your policies, train your supervisors and managers, consider whether to add a policy for transgender employees who are or will be transitioning, and consider whether unisex bathrooms and locker rooms make more sense for your company. Whatever you do, remember to be sensitive to your employees and reach out to your employment attorneys with the questions that we all know will come up.

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