The U.S. Equal Employment Opportunity Commission (EEOC) is observing LGBTQ+ Pride Month, and the anniversary of the U.S. Supreme Court ruling in Bostock v. Clayton County, by releasing new resources to educate employers about the rights of applicants and workers to be free from sexual orientation and gender identity discrimination. In particular, the EEOC released a new Technical Assistance Document (document). The document reiterates that employers cannot:
- Discriminate against individuals based on sexual orientation or gender identity with respect to terms, conditions, or privileges of employment, including hiring, firing, furloughs, reductions in force, promotions, demotions, discipline, training, work assignments, pay, overtime, other compensation, or fringe benefits.
- Create or tolerate harassment based on sexual orientation or gender identity, including harassment by customers or clients. This may include intentionally and repeatedly using the wrong name and pronouns to refer to a transgender employee.
- Use customer preference to fire, refuse to hire, or assign work.
- Discriminate because an individual does not conform to a sex-based stereotype about feminine or masculine behavior (whether or not an employer knows the individual’s sexual orientation or gender identity).
- Require a transgender employee to dress or use a bathroom in accordance with the employee’s sex assigned at birth. However, employers may have separate bathrooms, locker rooms, and showers for men and women, or may have unisex or single-use bathrooms, locker rooms, and showers.
- Retaliate against any employee for opposing employment discrimination that the employee reasonably believes is unlawful; filing an EEOC charge or complaint; or participating in any investigation, hearing, or other proceeding connected to Title VII enforcement.
The document likewise notes that employers cannot discriminate, create or tolerate harassment against straight or cisgender (someone whose gender identity corresponds with the sex assigned at birth) individuals.
The EEOC addresses the tension between protections for private employers and employees with sincerely held religious beliefs and LGBTQ+ employees and applicants by noting, “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 information on those defenses and other issues related to religious organizations and discrimination based on religion, see EEOC Compliance Manual, Section 12: Religious Discrimination. Other defenses might also be available to employers depending on the facts of a particular case.” The law in this area is still developing and may be addressed by the Supreme Court in the near future. Any accommodations provided to employees based on their sincerely held religious beliefs must be carefully constructed so as not to impede the rights of LGBTQ+ individuals. For more information on religious accommodations in the workplace, see this complimentary Clark Hill Webinar recorded on June 15.
Clark Hill and Clark Hill PRIDE join the EEOC in celebrating LGBTQ+ Pride Month. Our Labor & Employment Law attorneys are available to answer any questions or concerns employers may have about the EEOC’s resources aimed at protecting the rights of LGBTQ+ individuals.