The EEOC’s “Best Practices” for LGBTQI+ Employment Equity

By Fiona Ong - Shawe Rosental LLP

April 27, 2023

As I’ve mentioned before, in my spare time (a lot more, now that the kids are out of the house) I sometimes review the Equal Employment Opportunity Commission’s federal sector Digest of EEO Law (which they used to issue quarterly, but now seems to be a little more sporadic). Sometimes, in addition to the recitation of federal sector cases, the EEOC will include an in-depth article on a particular topic of interest. Although these digests (and the articles they contain) are geared towards the federal government, the EEOC’s approach to certain employment issues can also be helpful for private employers. And that’s what we have here, with the EEOC’s article, “Moving Towards Equality in the Workplace for LGBTQI+ Employees.”

In the article, the EEOC goes through a detailed and rather fascinating history of LGBTQI+ employees in the federal workplace. Starting with the “lavender scare” of the 1940’s through 1960’s, when LGBTQI+ employees were forced out of federal agencies, the article then notes a turning point, sparked by the Stonewall Rebellion – a six-day protest involving violence between thousands of protesters and the police following a raid on the popular gay NYC bar, the Stonewall Inn.

During the 1970’s through the 1990’s, there were growing congressional and judicial efforts to prohibit discrimination against LGBTQI+ individuals. Of particular note, in 1989, the Supreme Court in Price Waterhouse v. Hopkins found that sex-stereotyping was a form of sex discrimination under Title VII. It subsequently recognized same-sex harassment in the 1998 case of Oncale v. Sundowner Offshore Services, Inc. That same year, President Clinton issued an executive order to prohibit sexual orientation discrimination in the competitive service of the federal civilian workforce.

Starting in the 2000’s, federal district courts began to recognize that discrimination against LGBTQI+ employees could constitute sex discrimination under Title VII. The EEOC boldly staked out this position in a (self-described) “landmark” 2012 federal sector case, Macy v. Department of Justice, which I blogged about at that time. In that case, the EEOC found that “claims of discrimination based on transgender status, also referred to as claims of discrimination based on gender identity, are cognizable under Title VII’s sex discrimination prohibition.”  In 2014, President Obama issued an executive order to prohibit discrimination by federal contractors on the basis of sexual orientation and gender identity. Over the next several years, the EEOC filed several lawsuits invoking Title VII to encompass discrimination on the basis of gender identity and sexual orientation.

Then in 2020, as most employers know, the Supreme Court issued its (most definitely) landmark decision in Bostock v. Clayton County, Georgia. As we discussed in our June 15, 2020 E-lert ,the Supreme Court held, in a 6-3 decision, that “an employer who fires an individual merely for being gay or transgender violates Title VII.”

The EEOC notes that, despite the Supreme Court’s ruling, LGBTQI+ employees continue to experience “high rates of discrimination in the employment arena.” According to the EEOC, more work must be done and “employers can help lay the groundwork.” Towards that end, the EEOC has identified certain promising practices for federal agencies. Most of these can also be transposed to the private workplace, as follows:

•  Update policies to explicitly state that discrimination and harassment based on sexual orientation and gender identity are prohibited under Title VII.
•  Make employees and managers aware of their right to file sexual orientation and gender identity discrimination charges with the EEOC.
•  Use inclusive language in policies and activities involving employee relationships and family.
•  Realize that not all employees and coworkers identify with the sex they were assigned at birth.
•  Immediately and effectively address anti-LGBTQI+ remarks, actions, and conduct in the workplace.
•  Provide comprehensive training on LGBTQI+ issues, including cultural competency training.
•  Share information on LGBTQI+ cultural competency training opportunities and events.
•  Incorporate LGBTQI+ content, where appropriate, into EEO and diversity and inclusion training.
•  Promote and sponsor LGBTQI+ Special Emphasis programs and events.
• Keep current on evolving case law and government policies.
•  Implement a gender transition policy.
•  Clarify that all employees are legally required to have access to restrooms and locker rooms corresponding to their gender identity.
•  Encourage employees to identify their pronouns in their email signature lines.

In our practice, we have certainly seen a marked increase in the number of employees who self-identify as LGBTQI+ in the workplace, and the issues that can arise with other employees, customer preferences, restroom use, and more. It may be wise for employers to consider some of these suggestions from the EEOC as part of their anti-discrimination and anti-harassment efforts.

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