Back in 2020, the Supreme Court held in Bostock v. Clayton County that discrimination based on sexual orientation or gender identity is prohibited by Title VII of the Civil Rights Act of 1964. Recently, the Equal Employment Opportunity Commission issued guidance on what sorts of actions constitute discrimination based on sexual orientation or gender identity. The guidance, which was issued in a Q&A format, provides both a summary of Bostock decision, as well as applications of the decision to situations not directly addressed by the decision. A summary of the guidance is below:
- Title VII protects not just LGBT+ people from discrimination based on their sexual orientation/gender identities, but also straight and cis-gender individuals.
- Employers may not take adverse action against employees simply because customers or clients would prefer to work with people who have a different sexual orientation or gender identity,
- Employers are not allowed to discriminate against an employee because that employee does not conform to a sex-based stereotype about feminine or masculine behavior.
- Employers may not force a transgender employee to dress in a manner that is inconsistent the employee’s gender identity.
- Under certain circumstances, use of pronouns/names that are inconsistent with an employee’s gender identity may be considered harassment under Title VII, as long as it is severe or pervasive. Accidental misuse of preferred pronouns/names may not qualify, but intentional and repeated misuse likely constitute harassment.
- Employers may separate bathrooms based on sex. However, they may not preclude a transgender person from using the bathroom that corresponds to their gender identity.
In light of this new guidance from the EEOC, employers should revisit and revise their policies to ensure they are in compliance with Title VII. If you have any questions about the EEOC’s guidance, or any area of employment law, contact Thatcher Law Firm at 301-441-1400. www.ThatcherLaw.com. Follow us on: