On Monday, the U.S. Equal Employment Opportunity Commission (EEOC) released updated guidance detailing that employers who refuse to use transgender workers’ preferred pronouns or who prevent them from using bathrooms corresponding to their gender identity are engaging in unlawful workplace harassment. The guidance will go into effect immediately.
“Harassment, both in-person and online, remains a serious issue in America’s workplaces. The EEOC’s updated guidance on harassment is a comprehensive resource that brings together best practices for preventing and remedying harassment and clarifies recent developments in the law,” EEOC Chair Charlotte A. Burrows said in a press release.
Discrimination against LGBTQ people, especially against queer and transgender people of color, is alarmingly prevalent. According to a 2021 report by the Williams Institute, 46 percent of LGBTQ workers have experienced unfair treatment at some point in their career, including being fired, harassed or not hired because of their sexual orientation or gender identity. Half of LGBTQ people reported attempting to avoid discrimination and harassment by not being out to their current supervisor.
The new guidance marks the first time in 25 years that the EEOC has introduced rules on workplace discrimination. This change was driven, at least in part, by the 2020 Supreme Court case Bostock v. Clayton County, a groundbreaking ruling that clarified that federal law prohibits anti-LGBTQ discrimination in employment.
However, despite workplace discrimination against LGBTQ people being illegal under Bostock, the EEOC reports that between 2016 and 2023, more than a third of the cases reviewed by the agency involved employer bias related to race, sex, disability, or other characteristics. By issuing this updated guidance, the EEOC hopes that it “will help raise awareness about the serious problem of harassment in employment and the law’s protections for those who experience it.”
Under the updated guidance, employers who persistently use the incorrect pronouns or names of their employees could be found to be fostering a hostile work environment. Likewise, denying an employee access to facilities aligned with their gender identity, such as bathrooms, lactation rooms, or changing areas, may constitute workplace harassment. While the guidance is not legally binding, it indicates how the commission will likely interpret harassment cases brought before it in the future.
“Every person deserves a workplace that is free from harassment, where they can be treated fairly, and with dignity and respect. This new guidance will help ensure that all employees can feel safe on the job. That includes transgender and non-binary workers, who are at particular risk of violence and discrimination at work and who have had to endure increasing levels of animosity as extremists have escalated their attacks against them in state legislation and beyond,” Emily Martin, the chief program officer for the National Women’s Law Center, said in a statement. “There is simply no place for harassment at work.”
Employees who believe they have been discriminated against can file a sex discrimination charge with the EEOC. The National Center for Transgender Equality explains that even if the discrimination has ceased, filing a charge can still prompt employers to adjust policies, discipline employees, or introduce training initiatives that could make the workplace safer for other LGBTQ employees and potentially result in financial remedies.
“The EEOC guidance makes clear that federal law does not allow workplaces to be in the business of using harassment to enforce sex stereotypes about how employees should live, present, or identify. This is illegal discrimination, plain and simple,” Martin said.
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