The Equal Employment Opportunity Commission (“EEOC”) has issued new guidance related to workplace harassment and LGBTQ+ employee rights. Issued on April 29, 2024, and effective immediately, the EEOC’s new Guidance clarifies and reinforces LGBTQ+ employees’ rights to the use of bathrooms as well as protecting them against misgendering. While the EEOC initially began its attempt to update its harassment guidance in 2017, this official guidance was not finalized because of internal disagreements as to the extent of LGBTQ+ worker protections.
To support its new guidance, the EEOC cites Meritor Savings Bank, FSB v. Vinson, a 2020 Supreme Court case wherein the Court held that Title VII of the Civil Rights Act of 1964’s prohibition against sex discrimination extends to bias based on an employee’s sexual orientation or gender identity.
The EEOC explains its new guidance is not meant to interfere with the Religious Freedom Restoration Act (“RFRA”) or any other section of Title VII. In anticipation of any legal challenges under the RFRA, the EEOC has stated that employers are not required to accommodate religious expression that “creates, or reasonably threatens to create, a hostile work environment.” However, the EEOC has reserved the right to investigate any claim of refusal to accommodate on a case-by-case basis.
Harassment Based on Sexual Orientation or Gender Identity
The EEOC guidance sets forth specific ways in which an employee may be discriminated against in the workplace based upon their sexual orientation or gender identity. Examples include:
- The use of epithets regarding sexual orientation or gender identity;
- Physical assault;
- The disclosure of an individual’s sexual orientation or gender identity without permission (colloquially known as “outing”);
- Harassing conduct because an individual does not present in a manner that would stereotypically be associated with that person’s sex;
- Repeated and intentional use of a name or pronoun inconsistent with the individual’s known gender identity (known as “misgendering”); or
- Denial of access to a bathroom or other sex-segregated facility consistent with the individual’s gender identity.
The EEOC guidance examples vary significantly in an attempt to provide employers with an array of scenarios in which harassment and/or discrimination based on sexual orientation or gender identity may occur. Ultimately, the EEOC states: 1) sex-based harassment creates an objectively hostile work environment; 2) harassment based on gender identity creates an objectively hostile work environment; and 3) religious expression does not create an objectively hostile work environment.
In one particular example used several times in the guidance, a female employee who is transgender is repeatedly referred to as “dude” and “he” by her supervisor and coworkers despite the employee requesting the other employees use her correct name and pronouns. The EEOC states this would constitute harassment and/or discrimination as repeated and intentional misgendering.
The EEOC states that currently one-third of all charges of employment discrimination filed with the EEOC involve harassment based upon race, sex, disability, or other statutorily protected characteristics. In light of this new guidance, employers should be wary of their employees’ interactions with one another as well as any policies that may discriminate based upon sexual orientation or gender identity. Further, employers should evaluate their current policies and practices regarding any sex-segregated facilities to ensure compliance with the EEOC’s new guidance.
The St. Louis employment attorneys at McMahon Berger have been representing employers across the country in labor and employment matters for over sixty years and are available to discuss these issues and others. As always, the foregoing is for informational purposes only and does not constitute legal advice regarding any particular situation as every situation must be evaluated on its own facts. The choice of a lawyer is an important decision and should not be based solely on advertisements.
