The Equal Employment Opportunity Commission (EEOC) recently issued technical guidance regarding discrimination based on sexual orientation or gender identity. The technical guidance clarifies existing law regarding sex-based discrimination in light of the Supreme Court’s decision in Bostock v. Clayton County, 590 U.S. _____ (2020).

In addition to explaining the Bostock decision, the technical guidance addresses two issues that have become common issues for employers in recent years: bathrooms and pronouns.

Employees Using Bathrooms Consistent with Gender Identity

Many workplaces provide separate men’s and women’s bathrooms, locker rooms, showers, and/or similar facilities for employees to use. However, there is a number of workplaces (as well as public accommodations) that are opting for unisex or single-occupant facilities either as an alternative or in addition to separate facilities for men and women.

Having separate bathrooms for men and women is not an issue. The courts have long ruled in favor of employers who provide separate bathrooms, locker rooms, or other similar facilities. Issues arise when someone is denied the use of those facilities based on gender identity.

The EEOC’s position is that employers may not deny an employee equal access to bathroom facilities that correspond to the employee’s gender identity. That means, if an employer has separate facilities for men and women, 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. Additionally, even if unisex or single-occupant facilities are available, employers may not require transgender individuals use those facilities instead of the facilities that correspond with their gender identity.

This position is not new and not exclusive to the EEOC. The Occupational Safety and Health Administration (OSHA) has long held the position that all employees, including transgender employees, should have access to sanitary and available bathroom facilities, and not restrict employees to only using bathrooms that are inconsistent with their gender identity or segregating them from other employees by requiring them to use gender-neutral facilities. In its 2015 guidance on this issue, OSHA notes that bathroom restrictions can result in employees avoiding use of the bathroom entirely, which can result in adverse health effects.

Appropriate Use of Preferred Pronouns and Names

Addressing a person by their preferred name or using their preferred pronouns is more than just a common courtesy. Failing to do so can result in liability for unlawful harassment.

Most people do not have an issue with addressing someone as “he/him” or “she/her” when the person’s gender identity matches their assigned sex at birth. However, some transgender or gender-nonconforming individuals use and prefer other pronouns, like “they/them” or “ze/hir,” or use pronouns consistent with the gender they identify with. Additionally, when John, who has been with the company for 10 years, announces that he is transitioning and will be going by Jane going forward, addressing Jane by her former name can give rise to a discrimination claim.

The EEOC’s technical guidance makes it clear that accidental misuse of a transgender employee’s preferred name and/or pronouns does not violate Title VII of the Civil Rights Act of 1964. However, intentionally or repeatedly using the wrong name or pronouns to refer to a transgender employee can rise to unlawful harassment.

Both of these issues can be addressed through training and policies that promote an inclusive work environment. While Nevada law does not currently require discrimination or harassment training for employees, we recommend employees receive harassment training on an annual basis. It’s important for employees to understand what is prohibited not only by company policy, but also under the law. Additionally, employers should review company policies regularly to ensure they address changes in the law. We recommend having your handbook reviewed at least annually, but especially following a legislative session to ensure any new obligations are covered.

In need of harassment training? Contact NAE. We offer harassment training — on-site and virtually — for both managers and employees. NAE members receive discounted pricing on all of our training offerings.

When was the last time your handbook was reviewed? If it’s been a while, allow our team of HR and legal professionals to conduct a review to ensure everything is compliant with state and federal law. NAE members never pay extra for a handbook review — it’s included in membership. Not a member? Join today.