EEOC Confirms that Gender Identity and Sexual Orientation are Protected

The Equal Employment Opportunity Commission has stated definitively that it interprets, and will enforce accordingly, the Civil Right Act’s Title VII’s prohibition on sex discrimination as encompassing employment discrimination based on gender identity and sexual orientation. Employers should review and update their policies and apply them consistently and fairly to all employees regardless of gender identity or sexual orientation.

The Commission bulletin, released on July 15, 2016, confirms the agency’s position that protection for members of the LGBT (lesbian, gay, bisexual, and transgender) community against employment discrimination, and retaliation for reporting discrimination, will be available to both federal and private sector employees, regardless of any state and local laws that suggest otherwise.

The EEOC provides examples for employers as to what constitutes a claim of LGBT-related sex discrimination. The agency cautions employers against terminating, demoting, or failing to hire an individual because of the individual’s sexual orientation or gender identity. Additionally, employers are instructed to take precautions against workplace harassment, which may include derogatory terms, sexually orientated comments, and generally disparaging remarks. Harassment of transgender employees may occur when a coworker or supervisor intentionally and persistently fails to use the name and gender pronoun which corresponds with the employee’s identified gender (commonly referred to by the EEOC as “misgendering”), and which the employee has previously communicated to management and employees.

The EEOC warns that denying fringe or medical benefits to employees (or their legal spouses) because of their gender identity or sexual orientation is prohibited.