EEOC Issues Guidance Addressing Transgender Bathroom and Pronoun Policies

John T. Melcon

The EEOC marked the one-year anniversary of Bostock v. Clayton County—the landmark Supreme Court decision holding that Title VII of the Civil Rights Act of 1964 prohibits workplace discrimination on the basis of sexual orientation and gender identity—by issuing informal guidance outlining workplace protections for LGBTQ individuals. Among other things, the guidance addresses issues related to bathroom use and pronouns for transgender workers.

Presented in Q&A format, the “technical assistance document” explains that employers remain permitted to offer sex-segregated bathrooms, but if an employer does so, it “may not deny an employee equal access to a bathroom, locker room, or shower that corresponds to the employee’s gender identity.” That is, “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 EEOC also explained that the use of pronouns or names inconsistent with an employee’s gender identity could constitute unlawful harassment “in certain circumstances.” As the guidance states, “although accidental misuse of a transgender employee’s preferred name and pronouns does not 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.”

The new guidance sheds little light on the applicability of these requirements to religious employers with sincerely-held beliefs about human sexuality, but notes that “courts and the EEOC consider and apply, on a case by case basis, any religious defenses to discrimination claims, under Title VII and other applicable laws.”

Although non-binding (and harshly criticized by 21 state attorneys general), the guidance augurs in favor of additional employee and supervisor training, particularly with respect to preferred pronoun usage. Employers who are unsure if their policies comply with the EEOC’s new guidance, or who are facing a charge of discrimination related to these issues, should contact an experienced attorney in Sherman & Howard’s Labor & Employment group.