Category Archives: EEOC Regulations

EEOC Issues New Guidance on Title VII’s Prohibition of Sexual Orientation and Gender Identity Discrimination

Contributed By Allison P. Sues, July 16, 2021

Employment law books and a gavel on desk in the library.

On June 15, 2021, The U.S. Equal Employment Opportunity Commission (EEOC) issued guidance on “Protections Against Employment Discrimination Based on Sexual Orientation or Gender Identity.”  This resource reviews the impact of the Supreme Court’s Bostock v. Clayton County case and provides the EEOC’s position on what constitutes unlawful discrimination based on sexual orientation and gender identity.  The EEOC’s answers to key questions on this issue are summarized below. 

Does Title VII’s prohibition against sex discrimination extend to treatment based on sexual orientation or sexual identity?

Yes. In June 2020, the Supreme Court unequivocally held that discrimination based on sexual orientation or gender identity is discrimination based on sex and, therefore, prohibited under Title VII. In Bostock, the Court extended Title VII’s legal protections to LGBTQ+ employees after examining three different discrimination claims where employees claimed that they were fired after their employers learned that they were gay or transitioning from one gender to another.  As with all Title VII protections, employers cannot take any adverse employment action –including decisions involving hiring, firing, promoting, disciplining, training, or providing compensation or other benefits – based on the sexual orientation or gender identity of an employee or applicant. 

Can an employer’s discriminatory action toward an LGBTQ+ employee be justified by customer or client preference?

No.  Even if a company’s clients or customers have a preference to work with people of certain sexual orientations or gender identities, an employer cannot refuse to hire, fire, or reassign an employee based on their LGBTQ+ status. Similarly, an employer cannot assign LGBTQ+ employees to positions that do not interface with the public based on their protected status.

May an employer make employment decisions based on a belief that the employee acts or appears in ways that do not conform to stereotypes about women or men?

No. Even if an employer does not have knowledge of the employee’s gender identity or sexual orientation, employers are not allowed to discriminate based on gender stereotypes.  For example, an employer cannot demote a male employee because it perceives him to behave in stereotypically feminine ways. Relatedly, an employer may not require a transgender employee to dress in accordance with the employee’s assigned sex at birth.  Employers should not have any gender-specific expectations about appearance.

May an employer host separate, sex-segregated bathrooms, locker rooms, or showers for men and women?

Yes.  However, the employer must not prohibit any employee from using the bathroom, locker room, or shower for the gender with which they identify.  For example, transgender women should be allowed to use the women’s bathroom.

Could it be considered unlawful harassment to use names or pronouns inconsistent with an individual’s gender identity?

Yes, possibly. As with all other hostile work environment claims, the harassment must be sufficiently severe or pervasive to be actionable.  If an employer accidentally misuses an employee’s pronoun or forgets to use an individual’s name in isolated incidents, that may not rise to the level of a Title VII violation.  However, an employer that intentionally and consistently refuses to use an employee’s correct name or pronouns may be deemed to be unlawfully harassing that employee. 

Does Your Workplace Wellness Program Comply With Existing Laws?

Contributed by Allison Sues, May 23, 2017

The National Business Group on Health’s Eighth Annual Survey on Corporate Health recently revealed the growing prevalence of workplace wellness programs. Many such programs are expanding their aim to not only better the physical health of employees, but also to improve employees’ emotional health and financial security.

employee wellness

Words “Employee Wellness” with a red circle around it

Employers should be cautious that health and wellness programs, particularly those dealing with the physical and emotional health of employees, do not run afoul of existing laws. Many employers offer employees health promotion and disease prevention activities, commonly including programs aimed at smoking cessation, weight management, and physical activity challenges. Any wellness program that asks participants to provide personal medical information or submit to health testing should comply with the Americans with Disabilities Act (ADA), Genetic Information Nondiscrimination Act (GINA), and the Health Insurance Portability and Accountability Act (HIPAA).

Looking closer at the ADA, it generally prohibits employers from making disability-related inquiries or requiring employees to submit to medical exams. The statute exempts wellness programs from this prohibition, stating that employers may “conduct voluntary medical examinations, including voluntary medical histories that are part of an employee health program available to employees at that worksite.” 42 U.S.C. § 12112(d)(4)(B). EEOC regulations confirm that wellness programs must be voluntary, confidential, and reasonably designed to promote health or prevent disease.  29 C.F.R. § 1630.14 (d)(1)-(4).

  • Wellness programs must be used only to improve the health of participating employees. A wellness program is reasonably designed to promote health or prevent disease if it has a reasonable chance of bettering the health of participants, is not overly burdensome, and is not a subterfuge for violating the ADA or any other law.
  • Employers must be able to show how they utilize any collected medical information to better participants’ health. A wellness program will raise suspicion if it collects employee health information through questionnaires, testing, or screening without providing any results, follow-up information, or advice designed to improve the participant’s health.
  • Wellness programs that collect employee health information must be voluntary. This means that employees may choose not to participate in the wellness program without suffering any retaliation or adverse action, including denial of coverage under a group health plan.
  • An incentive-based program may still be deemed voluntary. Use of a financial reward, financial penalty, or other incentive to encourage participation in a wellness program does not render the program involuntary if the maximum incentive does not exceed regulatory thresholds. For employers offering a group health plan, incentives must not exceed thirty percent of the total cost of coverage for the employee (including both contributions from employer and employee).
  • Employers must provide employees with notification about the wellness program. The notification must describe all personal medical information that will be collected and how it will be used. The notification must also explain what measures the employer will take to ensure the information is not improperly disclosed.

Arbitrary Disposal of Rejected Employment Applications vs. EEOC Regulations

Contributed by Steven Jados

On the final day of September, the EEOC filed a sex discrimination lawsuit against the Coca Cola Bottling Company of Mobile, Alabama. The EEOC frequently files lawsuits, but this lawsuit had an additional claim not often seen, which may be a wake-up call to many employers.

That claim was based on the bottling company’s alleged failure to preserve employment records—specifically, employment applications.

Federal regulations require the retention of employment applications “for a period of one year from the date of the making of the record or the personnel action involved, whichever occurs later.” For rejected applicants, the personnel action at issue is, of course, the rejection of the applicant.

Unless an employer is the rare company that makes decisions on applications the same day they are received, the EEOC’s retention requirements mandate that the employer keeps applications for one year—that is, one year from the date of rejection. If an employer fails to comply with this recordkeeping requirement, the EEOC can bring a lawsuit against the employer for an injunction to force the employer’s compliance.

What all of this means for employers, is that they must implement record retention procedures under which rejected applications are retained for a minimum of one year. Although it may seem obvious, step one of implementing such a procedure requires documenting the date when the decision to reject an application is made.

While some employers may brush off the record retention requirements as low-risk and overly technical, the reality is that if the EEOC investigates your company and finds recordkeeping violations, those violations may incite the EEOC to make more serious and widespread allegations of discrimination. These allegations will be more difficult to defend if the company has already destroyed relevant documents, such as employment applications. Bearing that in mind, employers should take this opportunity to review their record retention policies and procedures to ensure they comply with the EEOC’s regulations.