EEOC Issues Guidance on LGBTQ+ Issues in the Workplace

June 17, 2021
Detroit, Michigan

One year ago, on June 15, 2020, the U.S. Supreme Court issued its landmark ruling in Bostock v. Clayton County, extending Title VII of the Civil Rights Acts of 1964 to include sexual orientation or gender identity as a protected class with respect to employment discrimination. This week, on the anniversary of the decision, the EEOC issued guidance (here) to employers on compliance with Bostock.

Bostock involved a trio of cases alleging discrimination against LGBTQ+ workers. Gerald Bostock, a child welfare services coordinator, was fired after his employer learned he had joined a gay softball league. Donald Zarda, a skydiving instructor, was fired after his employer learned he was gay. Aimee Stephens, a funeral director in Michigan, was fired after her employer learned that she intended to transition from male to female. In resolving these cases, the Supreme Court concluded Title VII’s reference to “sex” includes sexual orientation and transgender status, making it unlawful for a covered employer to take an employee’s sexual orientation or transgender status into account in making employment-related decisions. 

 The EEOC Guidance contains these important reminders:  

  • Employers may not discriminate against job applicants or employees because the applicant or employee is, for example, straight or cisgender, transgender or gay.
  • Employers are not allowed to segregate employees based on actual or perceived customer preference. For example, it would be discriminatory to keep LGBTQ+ employees out of public-facing positions, or to direct these employees toward certain stores or geographic areas.
  • Employers may not discriminate against an employee because that employee does not conform to a sex-based stereotype about feminine or masculine behavior.
  • Employers are not allowed to prohibit a transgender person from dressing or presenting consistent with that person’s gender identity.
  • Employers may have separate, sex-segregated bathrooms, locker rooms, and showers that correspond with the employee’s 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.
  • Intentionally and repeatedly using the wrong name and pronouns to refer to a transgender employee could contribute to an unlawful hostile work environment. Accidental misuse of a transgender employee’s preferred name and pronoun does not violate Title VII, however.

If you need additional guidance in ensuring compliance with this evolving area of the law and human rights, Nemeth Law is available to assist.