EEOC Backs Preferred Pronouns, Bathroom Facility Access and More

Author: Emily Scace, XpertHR Legal Editor

In June 2020, the Supreme Court decided Bostock v. Clayton County, a landmark decision holding that discrimination based on sexual orientation or gender identity is a form of sex-based discrimination prohibited by Title VII. A year later, the Equal Employment Opportunity Commission (EEOC) has issued new guidance elaborating on what the Bostock decision means for employers and LGBTQ+ workers.

The guidance does not create or alter an employer's legal obligations, but does provide insight into the EEOC's interpretation of existing law.

Under Title VII, an employer may not discriminate against an employee merely because of the employee's sexual orientation or gender identity with respect to:

  • Hiring, firing, furloughs or layoffs;
  • Promotions, demotions and discipline;
  • Training and assignments;
  • Pay, benefits and other compensation; and
  • Other terms, conditions and privileges of employment.

Harassment based on sexual orientation or gender identity is also prohibited when it becomes sufficiently severe or pervasive to create a hostile work environment. Employers must not engage in or tolerate such harassment and must take steps to prevent and correct it, including when the perpetrator is a customer, client or other non-employee.

Gender Stereotypes and Dress Codes

The EEOC clarified that employers may not discriminate against or harass an employee for a perceived failure to conform to gender stereotypes, regardless of the employee's sexual orientation or gender identity.

For example, an employer may not discriminate against a man who is perceived to act in a stereotypically feminine manner or a woman who is perceived to act or appear in a stereotypically masculine manner. In addition, prohibiting a transgender person from dressing or presenting in a manner consistent with the individual's gender identity would constitute unlawful discrimination.

Pronouns and Names

Employers should address and refer to employees with their preferred name and pronouns, according to the guidance, and communicate this policy to employees, supervisors and managers.

While accidental misuse of an employee's preferred name or pronoun does not violate Title VII by itself, repeatedly and intentionally using the wrong name and pronouns to refer to a transgender employee could contribute to an unlawful hostile work environment.

Bathroom and Locker Room Facilities

The guidance states that an employer may have separate bathrooms, locker rooms and showers for men and women, or may choose to have unisex or single-use bathrooms, locker rooms and showers.

However, employers may not deny an employee equal access to a bathroom, locker room or shower that corresponds to the employee's gender identity. In other words, if an employer has sex-segregated bathrooms, locker rooms or showers, all men (including transgender men) should be allowed to use the men's facilities, and all women (including transgender women) should be allowed to use the women's facilities.