EEOC Issues New Guidance on Workplace Transgender Policies

The Equal Employment Opportunity Commission (EEOC) recently issued new Guidance directed to employers addressing restroom policies and the use of employee preferred pronouns. Although this technical assistance guidance does not have the force and effect of law, it does provide employers with notice of how the EEOC may address these issues in the future. Departing from usual Agency practice, the Guidance was issued unilaterally by EEOC Chair Charlotte Burrows without a vote of the full five-member Commission.

With respect to restroom facilities, the EEOC's Guidance (issued in a question and answer format) indicates that an employer with separate bathroom facilities may not prohibit an employee from using the restroom that corresponds with that person's gender identity. The policy does not impact employers that utilize only unisex facilities open to all employees. The Guidance also reaffirms that the EEOC will not recognize the anxiety or discomfort of co-workers as a defense to claims of discriminatory policies.

The EEOC's new Guidance also provides that the intentional or repeated use of a name or pronoun other than one of an employee's choosing may create a hostile work environment in violation of Title VII of the Civil Rights Act. It does indicate that the accidental use of a transgendered person's nonpreferred pronoun does not violate the law.

The EEOC issued this Guidance on the one-year anniversary of the Supreme Court's seminal sexual orientation and gender identity decision in Bostock v. Clayton County. Much like the Court in Bostock, the EEOC's Guidance provides little clarity for employers on how to handle potentially competing employee claims or defenses related to sincerely held religious beliefs on gender and sexuality. As recognized in the Court's opinion in Bostock, these competing interests may need to be resolved by future litigation. Regardless, employers must continue to take employee claims for religious accommodation (or complaints of discrimination) into account on a case-by-case bases when potentially conflicting workplace policies and concerns arise.

These issues will remain complex and challenging for employers. For now, employers may be best served by looking at practical approaches to address these issues and avoid potential liability. Such steps may include utilizing unisex restrooms where practical, providing training on workplace non-discrimination policies, and seeking out legal and human resources guidance to avoid workplace problems and complaints before they arise.  Documenting their processes and decisions on workplace issues also remains as important as always for employers.