The Equal Employment Opportunity Commission (“EEOC”) recently issued guidance and online resources to aid employers in avoiding sexual orientation and gender identity discrimination in the workplace. The guidance coincides with the one-year anniversary of the Supreme Court’s decision in Bostock v. Clayton County, finding that firing individuals because of their sexual orientation or transgender status constitutes discrimination  because of sex.

The EEOC’s guidance provides more nuanced detail regarding the Agency’s position on sexual orientation and gender identity discrimination, including the following:

  • Protections for Straight Individuals – Non-LGBTQ+ applicants and employees also are protected from discrimination and harassment based on their sexual orientation or gender identity.
  • Customer/Client Preferences – Employers may not segregate or otherwise discriminate against employees based upon the actual or perceived preferences of customers or clients.
  • Bathrooms and Locker Rooms – While employers may maintain separate, sex-segregated bathrooms, locker rooms, and showers for men and women, they may not deny an employee equal access to these facilities based upon the employee’s gender identity. According to the EEOC, “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 women’s facilities.”
  • Pronouns – While an employer’s accidental misuse of pronouns is not problematic, an employer’s intentional and repeated use of the wrong name and/or pronouns could result in an unlawful hostile work environment.
  • Clothes and Outward Appearances – Prohibiting a transgender person from dressing or otherwise presenting in a manner consistent with the person’s gender identity will constitute sex discrimination.

Employers should take the EEOC’s guidance into account when drafting, enforcing, and training on anti-discrimination and harassment policies.

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Photo of Michael N. Chesney Michael N. Chesney

Mike represents management in all aspects of labor and employment law, including representing employers in court, arbitrations, administrative proceedings, and other disputes. He advises companies, both large and small, on human resources issues and litigation prevention, including advice on terminations, compliance with employment…

Mike represents management in all aspects of labor and employment law, including representing employers in court, arbitrations, administrative proceedings, and other disputes. He advises companies, both large and small, on human resources issues and litigation prevention, including advice on terminations, compliance with employment laws, workplace investigations and the preparation of policies and employment agreements. Mike prides himself on providing strategic and practical advice to minimize the risk of employment litigation. Should litigation arise, Mike is a prepared, practical and aggressive advocate for his clients. He has successfully represented employers in single plaintiff and class/collective actions in state and federal courts, arbitration matters, and before administrative agencies throughout the country.