The Equal Employment Opportunity Commission recently published new resources and informal guidance on preventing workplace discrimination. Employers may benefit from access to these resources as they seek to comply with Title VII, which prohibits bias based on sexual orientation or gender identity.
The resources are intended to help employers prevent discrimination against transgender individuals. The information was made available on the anniversary of the Supreme Court’s ruling in Bostock, which officially established adverse actions based on related grounds as discriminatory. Although the new EEOC recommendations do not carry the weight of law, the guidance is a clear indication of how similar matters will be treated by the EEOC under Bostock. Key issues addressed include restroom usage, the use of preferred names and non-gendered pronouns, and other issues LGBTQ+ employees may face.
Recent clarifications include the equitable use of shared spaces, including locker rooms, showers and restrooms. While employers are not obligated to offer unisex shared spaces and may maintain areas separated by gender, employees who identify with that gender cannot be barred from using the rooms as designated. Similarly, employers cannot require employees to use the spaces indicated for people of their biological gender assigned at birth despite others’ personal beliefs or workplace complaints.
The issue of names and use of an employee’s preferred pronouns is also mentioned. The guidance highlights the negative impact of consistently misgendering individuals who identify differently than their assumed gender. Intentional and repeated use of an employee’s former name and non-preferred pronoun (e.g., he, she, her, him, they, them) can create a hostile work environment in violation of Title VII. Accidental misuse of these terms, however, does not rise to the level of misconduct when it is not repeated intentionally or pervasively.
While it is worth noting that only one member of the EEOC, Chair Charlotte Burrows, issued the guidance and some controversy has resulted given its unilateral nature, employers should seek to stay current on related issues. Regardless of personal or religious beliefs, employers are advised to train supervisors on related workplace discrimination and reporting and ensure a harassment-free workplace.
* This article first appeared in The Journal Record on August 13, 2021, and is reproduced with permission from the publisher.