EEOC issues guidelines on discrimination based on sexual orientation and gender identity – employment and hr

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United States: EEOC issues guidelines on discrimination based on sexual orientation and gender identity

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Washington, DC (July 21, 2021) – In response to the United States Supreme Court ruling in Bostock v. Clayton County, who held that the prohibition of sex discrimination under Title VII of the Civil Rights Act 1964 extends to discrimination in employment on the basis of sexual orientation or gender identity, the Equal Employment Opportunity Commission (EEOC) has provided its own informal guidelines outlining workplace protections. for LGBTQ employees and candidates.

What does the guide say?

From the outset, this “technical assistance document” explains that Title VII applies to employers with 15 or more employees. Title VII allows religious organizations and religious education institutions to hire and employ people who share their own religion. While the EEOC still considers religious exemptions and defenses against allegations of discrimination, the guide does not explain how this exemption might be applied to issues of transgender or sexual orientation.

Title VII prohibits discrimination against individuals on the basis of sexual orientation or gender identity. The guide provides question-and-answer examples of the types of conduct that might constitute discrimination or harassment. The guide states that employers cannot discriminate against an employee or candidate because the employee or candidate does not conform to gender stereotypes regarding female or male behavior, or because the employer thinks the client (s) would prefer working with people of different sexual orientation. or gender identity. An employer cannot require an employee to dress in accordance with the sex assigned to him at birth, as this would constitute discrimination on the basis of sex.

The guide also discusses bathrooms, changing rooms and showers separated by gender. The guide explains that employers are still allowed to offer separate bathrooms, changing rooms and showers for sex; but if an employee identifies as a certain gender, the employer cannot deny that employee access to the bathroom, locker room or shower that matches that individual’s gender identity. The guide explains that if the employer has gender-segregated facilities, “all men (including transgender men) should be allowed to use male facilities and all women (including transgender women) should be allowed to use the facilities for women “.

The guide goes on to say that the use of pronouns or names inconsistent with the employee’s gender identity could be considered harassment. Specifically, while an accidental misuse of a transgender employee’s name or pronouns would not constitute harassment, an “intentional” and “repeated” misuse of an employee’s bad name and / or pronouns could contribute hostile and illegal work environment and sufficient to establish the harassment.

What does this mean for employers?

The post itself does not have the force and effect of law and is not intended to bind the public in any way. The EEOC simply published these guidelines as a way to help employers stay informed about what the law requires and to help employees know their rights.

For employers, it is more essential than ever to adequately train staff on how these laws apply to their workforce. For example, while an unintentional slip of a bad pronoun would not reach an actionable level, if a manager repeatedly uses the wrong pronoun for a transgender employee, such conduct could constitute unlawful harassment. Employers should evaluate their harassment and discrimination training practices, as well as their policies and procedures, to ensure that they adequately train managers and supervisors and that their policies and practices comply with Bostock notice and title VII.

The content of this article is intended to provide a general guide on the subject. Specialist advice should be sought regarding your particular situation.

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