Proposed EEOC Guidance Highlights Harassment Based on Sexual Orientation and Gender Identity

The U.S. Equal Employment Opportunity Commission (EEOC) recently released proposed guidance seeking to clarify that harassment and discrimination based on LGBTQ+ status—including intentional misgendering, repeated use of incorrect pronouns, or denial of access to the bathroom consistent with one’s gender identity—are cognizable federal workplace harassment claims.

Quick Hits

• The EEOC’s proposed guidance specifies the agency’s view harassment based on sexual orientation and gender identity, including how that identity is expressed, constitutes sex-based discrimination.
• While the Supreme Court’s decision in Bostock concerned allegations of discriminatory discharge based on LGBTQ+ status, the EEOC proposed guidance states Bostock “logically extends to claims of harassment” as numerous courts have held post-Bostock.
• Comments on the proposed guidance will be accepted until November 1, 2023.

On September 29, 2023, the EEOC unveiled proposed guidance, “Enforcement Guidance on Harassment in the Workplace,” outlining the agency’s legal standards and the potential for employer liability for harassment claims under federal antidiscrimination laws protecting employees from harassment based on protected characteristics. The EEOC noted workplace harassment continues to be an issue and from the beginning of fiscal year (FY) 2018 through FY 2022, more than one third of the charges it received included an allegation of harassment.

Specifically, the proposed guidance, which follows up on 2017 guidance never finalized, elucidates the agency’s stance that harassment based on sexual orientation and gender identity, including how that identity is expressed, are forms of sex-based discrimination.

Harassment Based on Sexual Orientation or Gender Identity

The proposed guidance sets forth specific ways in which sexual orientation or gender identity harassment may manifest in the workplace, including:

• “epithets regarding sexual orientation or gender identity;
• physical assault;
• harassment because an individual does not present in a manner that would stereotypically be associated with that person’s gender;
• intentional and repeated use of a name or pronoun inconsistent with the individual’s gender identity (misgendering); or
• the denial of access to a bathroom or other sex-segregated facility consistent with the individual’s gender identity.”

The proposed guidance includes a hypothetical example of harassment based on gender identity where a fast food employee who identifies as female is “frequently” referred to by supervisors and coworkers by the wrong name and pronouns and questioned about “her sexual orientation and anatomy and asserted that she was not female.” Notably, the EEOC stated in the hypothetical that harassment against the employee by “customers” who “intentionally misgendered” her may be considered as part of the harassment allegations against an employer where “her supervisors did not address the harassment and instead reassigned her to duties outside of the view of customers.”

In addition, the proposed guidance notes sex-based “stereotyping,” regardless of whether the stereotyping is positive or negative, may also constitute harassment or discrimination, including conduct based on assumptions about “the expression of sexual orientation or gender identity.”

Evolving Legal Landscape

The proposed guidance comes after the 2020 Supreme Court of the United States decision in Bostock v. Clayton County, Georgia, which held Title VII of the Civil Rights Act of 1964’s prohibition of discrimination “because of sex” encompasses sexual orientation and gender identity discrimination. In the wake of Bostock, President Biden issued an executive order directing federal agencies to enact rules prohibiting sexual orientation and gender identity discrimination. The EEOC previously issued written guidance in June 2021 regarding pronoun usage, in which it warned “intentionally and repeatedly using the wrong name and pronouns to refer to a transgender employee could contribute to an unlawful hostile work environment” and may violate Title VII.

In a footnote in the proposed guidance, the EEOC explained its view that while the Bostock decision concerned a discharge based on discrimination, the Supreme Court’s reasoning “logically extends to claims of harassment.” Further, the EEOC noted in the proposed guidance that prior to Bostock the agency had “concluded that discrimination on the basis of sexual orientation or gender identity violates Title VII,” particularly going back to its 2015 ruling in Lusardi v. Department of the Army regarding federal employees.

In the Lusardi case, the EEOC found denying a civilian employee of the U.S. Army who is transgender access to a bathroom corresponding with the employee’s gender identity, or requiring the use of a single-occupancy restroom, and repeatedly referring to the employee by the wrong pronoun may contribute to a hostile work environment. The EEOC, which has the final say with respect to employees of the federal government, ordered the agency to grant the employee “equal and full access to the common female facilities” even if it causes coworkers “confusion or anxiety” to share the restroom.

Next Steps

Though the EEOC’s proposed guidance is not final and remains open for comment, it highlights the agency’s ongoing enforcement focus on harassment based on sexual orientation and gender identity in the workplace. As such, employers may want to review their workplace policies and practices in light of the potential for liability for discrimination or harassment against LGBTQ+ employees or based on perceptions of employees not conforming to sex-based assumptions about behavior and dress. For example, employers may wish to consider incorporating examples specific to LGBTQ+ employees from the EEOC’s proposed guidance into their own expectations or training for employees and supervisors alike. Additionally, employers may want to remain aware of state antidiscrimination laws and similar guidance from state enforcement agencies, including state/local laws or state/local agency guidance that differs from Title VII’s protections and the EEOC’s proposed guidance.

The EEOC’s proposed guidance was formally published in the Federal Register on October 2, 2023. Stakeholders are invited to submit comments until November 1, 2023. Comments can be submitted online via the federal government’s e-regulation website here.

Ogletree Deakins will continue to monitor developments and will provide updates on the Diversity and Inclusion and Employment Law blogs.