Guidelines to Prevent Sexual Orientation and Gender Identity Discrimination in the Workplace
Jun 18, 2021 | Written by: | Share
On June 1, 2021, President Biden proclaimed June as LGBTQ+ Pride Month. To celebrate Pride Month, the U.S. Equal Employment Opportunity Commission (EEOC) has provided 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 (TAD). This guidance document emphasizes 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.
By the same token, the TAD document points out that employers cannot discriminate, create or tolerate harassment against straight or cisgender (a person 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.
If you need more information on the EEOC TAD document or any issues relating to religious or other forms of discrimination, please reach out to Leslie Parikh, Matt Lyons or Richard Cushing at 908 735-5161.
Note: acknowledgement is made to the law firm of Clark Hill for some of the information contained in this blog.
Richard P. Cushing, Esq., is a senior partner with Gebhardt & Kiefer, PC. He is a trial and municipal lawyer who specializes in complex litigation, land use matters, employment law, and the representation of public entities, corporations and insurance companies. Contact Mr. Cushing at 908-735-5161 or via email.
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Any statements made herein are solely for informational purposes only and should not be relied upon or construed as legal advice.