The U.S. Equal Employment Opportunity Commission (EEOC) recently released guidance on federal protections from discrimination and retaliation based on applicants’ or employees’ sexual orientation and transgender status.
Background:
Title VII of the Civil Rights Act of 1964 prohibits employers with 15 or more employees from discriminating against individuals because of sex and certain other protected characteristics. The law doesn’t specifically address sexual orientation or transgender status. However, in 2020, the U.S. Supreme Court ruled that federal law’s prohibition on sex discrimination also prohibits employers from discriminating against applicants and employees because of their sexual orientation or transgender status.
EEOC Guidance:
Harassment:
In the new guidance, the EEOC notes that federal law not only prohibits discrimination but also harassment if it creates a hostile work environment based on the employee’s sexual orientation or gender identity (generally defined as an individual’s innate sense of their own gender, which may or may not correspond with the sex assigned at birth). For example, harassment can include offensive or derogatory remarks about a person's transgender status or gender transition.
To be unlawful, the conduct must generally be frequent or severe. Although accidental misuse of a transgender employee’s preferred name and pronouns wouldn't alone violate Title VII, intentionally and repeatedly using the wrong name and pronouns to refer to a transgender employee could contribute to a hostile work environment, according to the guidance.
Customer Preferences:
The guidance states that employers covered by Title VII are prohibited from firing, refusing to hire, or taking assignments away from someone because customers or clients would prefer to work with an individual who has a different sexual orientation or gender identity.
Under Title VII, employers also are barred from segregating employees based on actual or perceived customer preferences. For example, it would be discriminatory to keep transgender employees out of client-facing positions, or to direct these employees toward certain stores or geographic areas.
Bathrooms:
The EEOC has taken the position that employers are prohibited from denying an employee equal access to a bathroom, locker room, or shower that corresponds with their gender identity. In other words, if an employer has separate bathrooms, locker rooms, or showers 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 the women’s facilities.
Dress Codes:
Title VII prohibits employers from refusing to allow employees to dress or present consistent with their gender identity.
Retaliation:
Title VII also prohibits employers from taking adverse action against an employee for:
- Opposing employment discrimination that they reasonably believed was unlawful;
- Filing a complaint with the EEOC; or
- Participating in any investigation, hearing, or other proceeding connected to Title VII enforcement.
Conclusion:
Employers should read the guidance in full to understand the protections for workers. While Title VII applies to employers with 15 or more employees, many states and local jurisdictions have enacted laws that expressly prohibit employers from discriminating against applicants and employees on the basis of their sexual orientation and gender identity and may cover smaller employers. Therefore, all employers should check their state and local law to ensure compliance.