The Equal Employment Opportunity Commission (EEOC), the federal agency responsible for enforcing federal labor laws, recently posted a summary of LGBT worker protections, which is available here. I encourage employers to take a look at this summary, because it does a good job of explaining how the EEOC will interpret and prosecute federal labor laws. It also contains links to useful information.
As we have explained, the EEOC has been interpreting federal labor laws to prohibit discrimination against employees due to their sexual orientation and gender identity. They have been aggressively pursuing employers whom they feel are engaged in these activities, and collected a record $525 million last year from employers accused of violating federal labor laws.
Some noteworthy things from the EEOC summary include:
- Bathrooms: The EEOC’s position is that it is illegal to prohibit an employee from using a bathroom that corresponds to his or her gender identity. So, refusing to allow someone born male but who identifies as female from using the women’s restroom would be prohibited by Title VII. The EEOC does not discuss what proof must be presented as to what a person’s gender identity is.
It is probably safe to assume that a male who only identifies as female when there is a line to get into the men’s bathroom would probably not be considered transgendered. But requiring an employee to change the gender on his or her driver’s license before being allowed to enter a particular bathroom would be illegal discrimination, according to guidelines set forth by OSHA.
- Proper Pronouns: The EEOC considers it to be harassment and a form of illegal discrimination to call someone by a pronoun that does not correspond to his or her gender identity. So, calling someone born male but identifying as female “he” or “him” would be illegal, according to the EEOC.
- Spousal Benefits: The EEOC considers it to be illegal gender discrimination for an employer to fail to provide the spouse of a same-sex marriage the same benefits that it provides the spouse of an opposite-sex marriage. So, the wife of a female employee should receive the same access to health insurance benefits that the wife a male employee would receive.
Because the EEOC is aggressively enforcing federal labor laws, employers should be sure to stay updated on the EEOC’s interpretation of these laws. This interpretation has been evolving over the past few years, so employers may want to consider periodically checking in with an experienced attorney to be sure that their policies are in accordance with the EEOC’s current interpretation of the law.