EEOC on Sexual Orientation & Gender Identity

The EEOC released a new Technical Assistance Document last month titled, “Protections Against Employment Discrimination Based on Sexual Orientation or Gender Identity.” This document was released approximately one year after the Supreme Court’s ruling that discrimination based on sexual orientation and gender identity violates Title VII of the Civil Rights Act of 1964. The following lists key takeaways for employers.

• It is unlawful to make decisions regarding the terms, conditions, or privileges of employment based on an individual’s sexual orientation or gender identity. This includes discriminatory decisions based on customer or client preferences.
• It is unlawful to require transgender employees to use restrooms corresponding to their assigned sex at birth.
• It is unlawful for employers to harass or tolerate harassment based on sexual orientation or gender identity by employees, clients, or customers. Using names and pronouns that are inconsistent with an individual’s gender identity can be considered harassment if doing so creates a work environment that is “intimidating, hostile, or offensive.”
• It is unlawful for employers to discriminate based on an individual’s failure to conform to stereotypical feminine or masculine behavioral expectations.
• Title VII protects employees from retaliation for opposing employment discrimination that is reasonably believed to be unlawful, filing an EEOC charge or complaint, or participating in Title VII related proceedings.
• According to the document, “Courts and the EEOC consider and apply, on a case by case basis, any religious defenses to discrimination claims, under Title VII and other applicable laws” (for more on religious discrimination, see our blog post here).

For more information, click here to access the Technical Assistance Document.

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