June 29, 2021

In a recent announcement commemorating Pride Month and the one-year anniversary of the US Supreme Court ruling that employees are protected against workplace discrimination based on sexual orientation and gender identity, the Equal Employment Opportunity Commission (EEOC) published new resources on its website.

In a statement, EEOC Chair Charlotte Burrows said, “All people, regardless of sexual orientation and gender identity, deserve an opportunity to work in an environment free from harassment or other discrimination.”

This is not a new policy — the EEOC’s intent is to provide a convenient resource that clarifies existing requirements on Title VII concepts, rights and responsibilities related to discrimination based on sexual orientation and gender identity. 

 Regardless of state or local laws, Title VII of the Civil Rights Act applies nationwide and protects employees from discrimination based on sexual orientation or gender identity in all aspects of employment — hiring, firing, pay, job assignments, promotions, layoff, training, fringe benefits and other terms or conditions of employment.. 

Further, the EEOC says that employers cannot prevent a transgender person from dressing or presenting consistent with that person’s gender identity or segregate employees based on actual or perceived customer preferences.

The EEOC also addresses the use of personal pronouns. While accidental misuse of a transgender employee’s preferred name and pronouns doesn’t 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.” 

Examples of harassment include offensive or derogatory jokes or comments about someone’s sexual orientation, transgender status or gender transition and unwelcome touching or sexual gestures.

Prior to the federal law, New York and California led the US in prohibiting discrimination based on sexual orientation, gender identity and gender expression. In 2019, New York amended its state Human Rights Law with the Gender Expression Non-Discrimination Act (GENDA). California passed a similar law, Senate Bill (SB) 396, in 2017.  Both New York and California require employers to conduct sexual harassment prevention training that includes gender identity, gender expression and sexual orientation. 

GENDA defines gender identity or expression as a person’s actual or perceived gender-related identity, appearance, behavior, expression or other gender-related characteristic regardless of the sex assigned to that person at birth, including, but not limited to, the status of being transgender. A transgender person is an individual who has a gender identity different from the sex assigned to that individual at birth.

Traliant Insight

On the first anniversary of the Supreme Court’s ruling that sex discrimination includes sexual orientation and gender identity, the EEOC published new workplace discrimination resources  on its website. This is yet another opportunity for organizations to review and update anti-discrimination and harassment policies, practices and compliance training — including recruiting and hiring and diversity, equity and inclusion programs — to ensure they address sexual orientation and gender identity. A comprehensive compliance training program is one of the most effective ways to raise awareness of different forms of discrimination and harassment and encourage respectful, inclusive behaviors and actions.

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