EEOC Issues New Guidance on Gender Identity Discrimination

By Leni Plimpton

On June 15, 2021, the Supreme Court’s Bostock v. Clayton County decision became the law of the land. This seminal case, written by Colorado Native Justice Neil Gorsuch, upheld the rights of transgender and gender non-conforming individuals to bring Title VII claims of discrimination on the basis of gender identity. In that case (which was actually three consolidated cases), the Court held that employment discrimination based on sexual orientation or transgender status is discrimination “because of sex” and therefore prohibited by federal law. In a new guidance issued to coincide with the anniversary of Bostock, the Equal Employment Opportunity Commission clarifies that employers may not:

  • Require a transgender employee to dress in accordance with the employee’s sex assigned at birth.

  • Discriminate against an employee because the employer believes the employee acts or appears in ways that do not conform to stereotypes about the way men or women are expected to behave.

  • Prevent employees from using and having equal access to a bathroom, locker room, or shower that corresponds to the employee’s gender identity.

  • Intentionally and repeatedly use the wrong name and/or pronouns to refer to a transgender employee.

This guidance does not cover every situation that might arise in the workplace. For example, it does not address any challenges that could arise when an employee has a “nonbinary” or other type of gender identity. It also does not provide much assistance with the nuances of dress codes, uniforms, and other behavior standards that your business might be facing. Finally, the guidance appears to be talking about standard pronouns like “he/him” and “she/her” but does not get into the more esoteric pronouns, such as “fae/faer,” “xe/xem,” “ze/zie,” “ve/ver” or the more commonly used “they/them.”

While Title VII applies only to employers with 15 or more employees, it is worth noting that the Colorado Anti-Discrimination Act (“CADA”) also bars discrimination on the basis of gender identity, and CADA applies to all employers in the state.

Given the state of flux in this area of our society, culture, and the law, it pays to be aware of these issues. Smart employers will take steps to ensure that Company materials such as handbooks, contracts, and policies are written in a gender-inclusive manner and will ensure their policies reflect a compliance and appropriate protections for gender identity. These legal changes, while overdue and certainly much needed as protections for transgender persons, unfortunately also have a high potential for abuse by unscrupulous lawyers and plaintiffs.

If you are confronted with a tricky gender identity issue in the workplace, or just want to make sure your business is prepared, please reach out to an experienced employment lawyer at Fortis Law Partners.

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