EEOC Guidance on Treatment of LGBTQ Employees Blocked in 20 States

/in /by

APPLIES TO

All Employers with AL, AK, AZ, AR, GA, ID, IN, KS, KY, LA, MS, MO, MT, NE, OH, OK, SC, SD, TN, and WV Employees

EFFECTIVE

July 15, 2022

  

QUESTIONS?

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(888) 378-2456

The Equal Employment Opportunity Commission’s (EEOC) 2021 guidance regarding the treatment of LGBTQ applicants and employees in the workplace has been blocked from enforcement in 20 states: Alabama, Alaska, Arizona, Arkansas, Georgia, Idaho, Indiana, Kansas, Kentucky, Louisiana, Mississippi, Missouri, Montana, Nebraska, Ohio, Oklahoma, South Carolina, South Dakota, Tennessee, and West Virginia. In Bostock v. Clayton County, the Supreme Court ruled the prohibition against sex discrimination in Title VII of the Civil Rights Act of 1964 includes employment discrimination on the basis of someone’s sexual orientation or transgender status. On the heels of this ruling, the EEOC issued guidance to provide clarity on how Title VII applies to LGBTQ related matters involving employment discrimination. In addition to Title VII’s other protections, the guidance primarily required employers to: 1) not prohibit a transgender person from dressing or presenting in a manner consistent with the person’s gender identity; 2) allow employees to use sex-segregated bathroom and locker room facilities that correspond to their gender identity; and 3) treat repeated and intentional use of the wrong name or pronoun for a transgender employee as harassment in violation of Title VII. 

 

A lawsuit filed by the Attorney General of Tennessee was joined by 19 other states’ attorneys general arguing that the guidance infringes on states’ powers to regulate their public workplaces and did not follow proper federal procedure when implementing the guidance. In July, a judge for the Federal District Court for the Eastern District of Tennessee agreed to issue a preliminary injunction against the enforcement of the EEOC guidance until the substance of the lawsuit is decided. Employers in these states should note this preliminary injunction only temporarily limits the EEOC’s actions. However, the injunction does not change the Bostock opinion protecting sexual orientation and transgender status under Title VII. Employers should continue to adhere to Bostock since individual employees can still bring lawsuits challenging employment practices under Title VII as it applies to LGBTQ status. 

 

Action Items 

  1. Read the EEOC guidance here. 
  2. Continue to comply with protections for sexual orientation and transgender status. 
  3. Consult with legal counsel prior to taking adverse actions that could violate Title VII. 
  4. Subscribers can call our HR On-Call Hotline at (888) 378-2456 for further assistance. 

Disclaimer: This document is designed to provide general information and guidance concerning employment-related issues. It is presented with the understanding that ManagEase is not engaged in rendering any legal opinions. If a legal opinion is needed, please contact the services of your own legal adviser. © 2022 ManagEase