In honor of LGBTQ+ Pride Month, the U.S. Equal Employment Opportunity Commission (EEOC) recently released a number of resources to educate employers, employees and applicants about the right to be free from sexual orientation and gender identity discrimination in employment. Although these resources simply restate existing law and policy, they are a great refresher for employers that want to ensure they are complying with federal employment discrimination law.
For example, the EEOC published a technical assistance document that describes protections for individuals against employment discrimination based on sexual orientation and gender identity. The technical assistance document reiterates the U.S. Supreme Court’s decision in Bostock v. Clayton County that Title VII of the Civil Rights Act of 1964 prohibits employers from discriminating against an individual on the basis of sexual orientation or transgender status. The document goes on to say that employers that are covered by Title VII are prohibited from firing, refusing to hire, taking assignments away or otherwise discriminating against someone because customers or clients would prefer to work with people who have a different sexual orientation or gender identity. Finally, the document states that it is unlawful sex discrimination for an employer to prohibit a transgender person from dressing or presenting consistent with that person’s gender identity.
The EEOC also provided a link to a guidance document that provides examples of discrimination and harassment based on gender identity. Specifically, the EEOC states that:
Gender identity harassment may include repeated, deliberate use of the wrong name or gender pronouns (such as he or she), shaming an employee for not acting or dressing in a way that reflects the sex the employee was assigned at birth, refusing to allow an employee to use the restroom associated with the gender the employee identifies with, or other offensive comments or conduct related to gender identity.
Examples of gender identity discrimination include refusing to hire an applicant after learning about the applicant’s gender identity, refusing to allow an employee to use the restroom associated with the gender the employee identifies with, firing an employee for announcing plans to transition, or requiring employees to appear at work as the gender they were assigned at birth.
Employers should consult with counsel when crafting and enforcing a non-discrimination policy to ensure that sexual orientation and gender identity are protected under the policy.