In advance of June (LGBTQ+ Pride Month) the EEOC issued long-awaited guidance on harassment in the workplace. An update on previous versions of this Guidance document, the EEOC added a section taking into account and considering the Supreme Court’s 2020 Bostock decision, which held that an employer who fires an individual merely for being gay or transgender violates Title VII of the Civil Rights Act of 1964.

Specifically, and citing Bostock, the EEOC’s guidance states, “Sex-based discrimination under Title VII includes employment discrimination based on sexual orientation or gender identity. Accordingly, sex-based harassment includes harassment based on sexual orientation or gender identity, including how that identity is expressed.” Examples of conduct specifically cited by the EEOC which could be examples of harassment include:

• Epithets regarding sexual orientation or gender identity;
• Physical assault due to sexual orientation or gender identity;
• Disclosing an individual’s sexual orientation or gender identity without their permission;
• Harassing conduct because an individual does not present in a manner stereotypically associated with their sex;
• Repeatedly “misgendering” an employee, i.e., intentionally using a name or pronoun inconsistent with the individual’s known gender identity; and
• The denial of access to a bathroom consistent with the individual’s gender identity.

Research conducted by the Human Rights Campaign shows that, as of 2021, 7.1% of all U.S. adults identify as LGBTQ+. With the increasing number of Gen Z individuals entering the workforce, the same report estimates that number will double within the next six years. As the workforce becomes more diverse, business attitudes must adapt too, and the EEOC’s latest guidance is a well-timed warning shot for employers who fail to do so.

If you have any questions about LGBTQ+ protections in your workplace, please contact an RKW Employment Attorney.

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