Julie A. Aquino, Esq., Campbell Durrant, P.C. | August 2021
The EEOC recently issued guidance regarding sexual orientation and gender identity discrimination in the workplace. As you may recall, the United States Supreme Court held in 2020 that discriminating against employees because of their sexual orientation or transgender status violates Title VII’s prohibition on discrimination based on “sex.” Accordingly, Title VII forbids sexual orientation and gender identity discrimination when it comes to any aspect of employment, including hiring, firing, pay, job assignments, promotions, benefits, etc. It is also unlawful to subject an employee to harassment that creates a hostile work environment based on sexual orientation or gender identity.
The EEOC recently posted guidance regarding sexual orientation and gender identity discrimination, available at https://www.eeoc.gov/sexual-orientation-and-gender-identity-sogi-discrimination. The EEOC explains that although accidental misuse of a transgender employee’s preferred name and pronoun does not violate Title VII, intentionally and repeatedly using the wrong name and pronoun to refer to a transgender employee could contribute to a hostile work environment. Furthermore, while the law doesn’t prohibit simple teasing, offhand comments, or isolated incidents that aren’t very serious, harassment is unlawful when it is so frequent or severe that it creates a hostile work environment or when it results in an adverse employment decision such as a separation or demotion.
The EEOC’s guidance also explains that employers covered under Title VII are not permitted to fire, refuse to hire, or take assignments away from an employee (or discriminate in any other way) because customers or clients would prefer to work with a person who has a different sexual orientation or gender identity, and it would be discriminatory to keep LGBTQ+ employees out of public-facing positions. Regarding dress codes, even neutral dress codes not intended to discriminate against transgender employees could be deemed discriminatory if the dress policy prohibits a transgender person from dressing or presenting consistent with that person’s gender identity.
Lastly, the EEOC also addressed the question of the use of employee bathrooms. Employers may have separate bathrooms for men and women. However, employers may not deny an employee equal access to the bathroom that corresponds to the employee’s gender identity, according to the EEOC. In other words, 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.
If your organization has questions regarding sexual orientation and gender identity discrimination law, please contact the attorneys at Campbell Durrant.