Wednesday, June 16, 2021

EEOC drops new LGBTQ+ guidance

Yesterday, the EEOC launched a new "landing page" for Sexual Orientation and Gender Identity (SOGI) discrimination, along with a new Technical Assistance Document – Protections Against Employment Discrimination Based on Sexual Orientation or Gender Identity. Yesterday just-so-happened to be the anniversary of the Bostock v. Clayton County Supreme Court ruling (holding that Title VII prohibits workplace discrimination based on sexual orientation and gender identity), and June is also Pride Month.

Some highlights form the new technical assistance doc (aside from the obvious):

  • Title VII also protects straight and cisgender employees from workplace discrimination;
  • Customer or client preferences do not justify discrimination based on SOGI (an acronym I've never seen before, but I can already see it coming in handy);
  • Not official use.
    Employers may not require employees to dress according to their sex (transgender employees may dress or present consistent with their gender identity); 
  • Employers do have the right to maintain sex-segregated bathrooms, locker rooms, or showers for men and women, but "employers may not deny an employee equal access to a bathroom, locker room, or shower that corresponds to the employee’s gender identity."
  • Using the wrong name and pronouns (i.e. not the ones identified by the employee) could be harassment - generally, "accidental misuse" will not create a hostile work environment but "intentionally and repeatedly" using the wrong name or pronouns could. 
All of these come with the giant caveat that this is the EEOC's interpretation of Title VII and the Bostock decision. The courts will not necessarily adopt the same interpretations, and generally afford less deference to "guidance" as opposed to regulations that have actually gone through the notice and comment rulemaking process. 

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