By virtue of the U.S. Supreme Court’s 2020 opinion in Bostock v. Clayton County, Title VII of the Civil Rights Act of 1964 prohibits employment discrimination based on sexual orientation or transgender status. On June 15, 2021, the U.S. Equal Employment Opportunity Commission issued nonbinding guidance clarifying the implications of Bostock for private employers. While such guidance is expressly not binding, it provides some insight into the current enforcement priorities for the agency.
The guidance reiterates an employer’s right to maintain bathrooms and locker rooms segregated by sex. But it cautions that “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 separate bathrooms, locker rooms, or showers for men and women, 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.”
The guidance also cautions employers that in certain circumstances the use of pronouns inconsistent with an individual’s gender identity could be actionable harassment. The EEOC restated previous findings that “intentionally and repeatedly using the wrong name and pronouns to refer to a transgender employee could contribute to an unlawful hostile work environment.”
Finally, the EEOC states that employers may not require transgender employees to dress in accordance with the employee’s sex assigned at birth.