Tag Archives: Gender identity

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. 

Transgender Employees – – Which Bathroom?

Contributed by Jeff Glass

More employers are encountering issues with transgender employees and job applicants.  The term “transgender” has various meanings, ranging from people who have undergone a sex change operation, are considering or preparing for such an operation, or are merely dressed like the opposite sex.

There are indications that “gender identity” could become a category of work place discrimination.  The U.S. Senate recently passed a bill providing protection against work place discrimination on the basis of sexual orientation or gender identity, although the bill is considered dead on arrival in the House.  The EEOC has taken the position that discrimination based on gender identity is impermissible under Title VII.  So, although the law is not well-developed, there is a trend emerging.

One basic issue is which restroom a transgender employee must use.  Under current law in most states, employees should use the facilities that match their current gender.  In other words, if a male employee is transitioning to being female, but is still anatomically male, he should use the men’s room.  However, given the evolving status of the law on this issue, employees are well-advised to take additional steps.  For example, the work force should be engaged through training so that they are aware of the transgender employee and treat the employee with respect.  This type of sensitivity training is useful to avoid liability for claims where other employees are accused of harassing the transgender employee.  A unisex bathroom is also useful, if it is available.  Often, while much of the work place will be tolerant of the transgender individual, a portion of the work force may be uncomfortable with sharing a bathroom with the transgender employee.  A unisex bathroom can solve the problem.

Other steps that are recommended are to review and revise the employee handbook to prohibit discrimination based on gender identity or expression, update personnel records to reflect the gender transition, and review dress codes to avoid gender stereotypes.  Also, if an employee has undergone surgery and is fully transgender, the employee’s status should be kept confidential just like other personal medical information.

Please keep in mind that this is a cutting edge issue and that the law varies from state to state. It is imperative that employers consult with experienced labor and employment counsel when dealing with transgender issues.

EEOC Decides Title VII Prohibits Gender Identity Discrimination

Contributed by Jon Hoag

The United States Equal Employment Opportunity Commission (EEOC) has ruled that discrimination against transgender individuals is sex discrimination under Title VII. This is the first time for the EEOC to hold that Title VII covers discrimination based on gender identity and the decision could have a sweeping impact. EEOC decisions are not controlling on the courts, but the federal courts often give deference to EEOC interpretations and decisions.

The case only involved the procedural issue of whether Title VII extended to the complainant’s allegations of gender identity. The EEOC decided in the affirmative and remanded the matter to the federal agency to determine if the employer discriminated based on the complainant’s gender identity. According to the complainant, she was denied a position with the ATF because she disclosed that she was in the process of transitioning from a male to a female. The complainant states that shortly after this disclosure, she was told that the position could not be filled because of budget cuts. The complainant was concerned about the timing and inquired further about the position only to find that the position had not been eliminated and was actually filled by another candidate. 

The complainant filed a charge of discrimination based on sex and gender identity. In reaching its decision that gender identity is covered by Title VII, the EEOC relied on federal decisions that have addressed Title VII in the context of gender stereotypes and identity. While some federal courts have found Title VII applies to gender identity discrimination, it is anticipated that the EEOC decision will prompt direct and consistent application of Title VII to gender identity discrimination claims. Employers…you know what to do…stay tuned and stand ready to adjust your policies and procedures accordingly.