On June 15, 2021, the Equal Employment Opportunity Commission (EEOC) issued new Guidance regarding transgender and gay people in the workplace.
The new guidance essentially reinstates Obama-era rules that were once based on executive orders. However, the new guidance is readily enforceable as the Supreme Court and multiple supportive Federal Court rulings have set Pro-LGBT judicial precedents.
The new guidance is directed to employers with 15 or more employees regarding restroom policies and the use of employee preferred pronouns aligns the EEOC mission with the 2020 Supreme Court ruling Bostock v. Clayton County, G.G. v. Gloucester County School Board and Parents for Privacy v. William P. Barr et al
Where it all began. September 1, 2016: Gavin Grimm testifying at a Gloucester County School Board Meeting as a junior in High School.
- Gavin Grimm’s case was appealed to the Supreme Court twice by the Gloucester County School Board and returned unheard to the Fourth Court of Appeals which ruled that, even though Secretary of Education Betsy Devos and Attorney General Jeff Sessions revoked guidance protecting trans students, they could not change what the law means.
- The United States Supreme Court declined to hear Parents for Privacy v. William P. Barr et al, allowing school districts to continue to affirm transgender students by allowing them to use the same restrooms and locker rooms as their peers.
JD Supra reports that this technical assistance guidance does not have the force and effect of law, it does provide employers with notice of how the EEOC may address these issues in the future.
With respect to restroom facilities, the EEOC’s Guidance (issued in a question and answer format) indicates that an employer with separate bathroom facilities may not prohibit an employee from using the restroom that corresponds with that person’s gender identity. The policy does not impact employers that utilize only unisex facilities open to all employees. The Guidance also reaffirms that the EEOC will not recognize the anxiety or discomfort of co-workers as a defense to claims of discriminatory policies.
The EEOC’s new guidance also provides that the intentional or repeated use of a name or pronoun other than one of an employee’s choosing may create a hostile work environment in violation of Title VII of the Civil Rights Act. It does indicate that the accidental use of a transgendered person’s nonpreferred pronoun does not violate the law.
The EEOC’s Guidance provides little clarity for employers on how to handle potentially competing employee claims or defenses related to sincerely held religious beliefs on gender and sexuality. As recognized in the Court’s opinion in Bostock, these competing interests may need to be resolved by litigation (that has recently begun).
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