EEOC Issues Guidance Addressing Discrimination Against Transgender Employees
The EEOC has issued a “technical assistance document” addressing employment discrimination based on sexual orientation or gender identity. You can find the document here: https://www.eeoc.gov/laws/guidance/protections-against-employment-discrimination-based-sexual-orientation-or-gender .
The EEOC made clear in the guidance that employers may not discriminate against, or segregate employees based upon perceived or actual customer preference. This applies to both actual sexual preference and transgender status as well as the fact that an employee may not conform to stereotypes related to their biological sex.
The EEOC also clarified that while employers may provide separate bathrooms and locker rooms for men and women, transgender men must be allowed to use the men’s facilities and transgender women must be allowed to use the women’s facilities.
The EEOC also explained that the use of pronouns or names inconsistent with an employee’s gender identity could constitute unlawful harassment “in certain circumstances.” However, “although accidental misuse of a transgender employee’s preferred name and pronouns does not violate Title VII, intentionally and repeatedly using the wrong name and pronouns to refer to a transgender employee could contribute to an unlawful hostile work environment.”
Keep in mind that this guidance does not have the force and effect of law, and it has been publicly criticized by several states Attorneys General, including Jeff Landry.
The new guidance sheds little light on the applicability of these requirements to religious employers with sincerely held beliefs about human sexuality but notes that “courts and the EEOC consider and apply, on a case-by-case basis, any religious defenses to discrimination claims, under Title VII and other applicable laws.”
Although non-binding (and harshly criticized by 21 state attorneys general), the guidance augurs in favor of additional employee and supervisor training, particularly with respect to preferred pronoun usage.