By / Karen Forner • employersolutionslaw.com
On June 15, 2021, the federal Equal Employment Opportunity Commission (EEOC) published a fact sheet about existing LGBTQ+ protections that apply to all Title VII employers.1 Title VII is a federal anti-discrimination law that covers all employers across the nation—private, government, union, and employment agencies—with 15 or more employees. The fact sheet is not new policy but simply a summary of existing LGBTQ+ protections against discrimination based on sexual orientation and gender identity that were recognized in the Supreme Court’s opinion last year in Bostock v. Clayton County, 590 U.S. ___, 140 S. Ct. 1731 (2020).
The LGBTQ+ protections summarized in the EEOC’s fact sheet may be news to some employers in different states, but Washington employers have already been held to these standards for over a decade. The Washington Law Against Discrimination (WLAD) expressly adopted protections against sexual orientation and gender identity/expression discrimination back in 2006, and the Washington State Human Rights Commission (WSHRC) published its own guidance.2 Moreover, the WLAD is more inclusive than Title VII because it applies to employers in Washington—except non-profit religious organizations—with eight or more employees.
Under both laws, covered employers may not make employment-related decisions based on an employee’s sexual orientation or gender identity (e.g., transgender status) or any other protected status (e.g., age, marital status, sex, pregnancy, sexual orientation, gender identity, race, creed/religion, color, national origin, military/veteran status, and disability). Employers are also prohibited from causing or allowing severe or pervasive harassment related to any protected trait. The EEOC and WSHRC guidance explains how these protections apply to three “hot button” issues:
- Dress codes: Employers must allow employees to dress in a manner consistent with their gender identity. It is unlawful to require employees to dress according to their biological sex.
- Sex-segregated bathrooms: While employers may provide sex-segregated bathrooms, they must permit employees to use the restroom that corresponds to their gender identity.
- Names and pronouns: While accidental misuse of pronouns will not amount to unlawful discrimination, intentional and repeated use of an employee’s wrong name and pronouns will contribute to an unlawful hostile work environment.
Some argue the EEOC fact sheet exceeds the agency’s authority in applying the Supreme Court’s Bostock decision, but the fact sheet serves as a good reminder of established Washington law and protections for LGBTQ+ employees. For non-profit religious organizations to which the WLAD does not apply, however, these institutions should stay tuned to future Supreme Court decisions as it decides how Title VII’s religious and ministerial exemptions will apply in future cases to non-profit employers who provide religious products and services.
While the EEOC’s newest guidance has little practical impact on Washington employers, it still raises awareness and reminds employers about their legal duty to prohibit discrimination and harassment in the workplace based on any protected trait. The legal framework for these situations is relatively straightforward, but in real life, dealing with conflict between employees is tricky given our increasingly fractured culture and the potential to clash with other employment protections. Navigating these issues should be done carefully with involvement of Human Resource Professionals and often with legal advice. ■
1 EEOC, “Protections Against Employment Discrimination Based on Sexual Orientation or Gender Identity,” available at eeoc.gov/laws/guidance/protections-against-employment-discrimination-based-sexual-orientation-or-gender#_edn1
2 WSHRC, “Guide to Sexual Orientation and Gender Identity and the Washington State Law Against Discrimination,” available at hum.wa.gov/sites/default/files/public/publications/Updated%20SO%20GI%20Guide.pdf
Since 1993, Karen Galipeau Forner has been working on labor and industries issues and employment law matters. Karen’s early background includes working at the Attorney General’s Office in the Labor and Industries Division where she got an inside look at construction companies and safety practices. After working as a senior attorney at a private law firm assisting employers with labor and industries cases, Karen then founded K-Solutions Law—now Employer Solutions Law—in Bellevue, Washington. Her practice has grown since 2009 into a firm comprised of ten employees aiding and advising employers statewide on matters of workers’ compensation, workplace safety (WISHA/DOSH/OSHA), wage and hour, prevailing wage, and employment law issues.
