EEOC Creates Resources Related to Sexual Orientation and Gender Identity Discrimination

In an effort to educate employees, applicants and employers about the rights of all employees, including lesbian, gay, bisexual and transgender workers, on sexual orientation and gender identity discrimination in employment, the Equal Employment Opportunity Commission (EEOC) released materials for individuals and employers.

• Landing page: Sexual Orientation and Gender identity Discrimination

The release of these materials coincided with the one-year anniversary of the landmark decision in the U.S. Supreme Court case Bostock v. Clayton County, which held that the prohibition against sex discrimination in Title VII of the Civil Rights Act of 1964 (Title VII) includes employment discrimination against an individual on the basis of sexual orientation or transgender status. Title VII prohibits employers from discriminating against individuals based on sexual orientation or gender identity with respect to:

• Hiring
• Firing, furloughs and reductions in workforce
• Promotions and demotions
• Discipline
• Training
• Work assignments
• Pay, overtime or other compensation
• Fringe benefits
• Other terms, conditions and privileges of employment

It is unlawful for an employer to create or tolerate harassment based on sexual orientation or gender identity. If an employee reports such harassment by a customer or client, the employer must take steps to stop and prevent it from happening again.

Within the technical assistance document, the EEOC addresses questions such as:

• “Could an employer’s discriminatory action be justified by customer or client preferences?” No, employers can’t take assignments away from someone because a customer would prefer to work with someone of a different sexual orientation or gender identity.
• “May a covered employer require a transgender employee to dress in accordance with the employee’s sex assigned at birth?” No, employers cannot prohibit transgender individuals from dressing or presenting consistent with their gender identity.
• “Could use of pronouns or names that are inconsistent with an individual’s gender identity be considered harassment?” Potentially. While accidental misuse of a transgender employee’s preferred name and pronouns does not violate Title VII, intentionally and repeatedly using the wrong name and pronouns to refer to a transgender employee could contribute to an unlawful hostile work environment.

Paychex Can Help

Employers subject to Title VII should ensure that their policies and practices comply with the EEOC’s guidance related to discrimination based on sexual orientation or gender identity, among other things. In addition, employers should review their obligations to comply with applicable federal, state and local laws addressing employment discrimination. Paychex has a team of HR professionals who can offer support to help your business with its compliance and HR needs.