EEOC issues controversial guidance on Bostocks 1st anniversary

On the first anniversary of the U.S. Supreme Court's decision in Bostock v. Clayton County, Ga., the Equal Employment Opportunity Commission issued new guidance (https://bit.ly/36TSnUG) for employers, including a new landing page on the rights of LGBT workers. The guidance outlines the EEOC's position on discrimination based on sexual orientation and gender identity, including that employers:

• Cannot discriminate against individuals based on sexual orientation or gender identity with respect to terms, conditions, or privileges of employment;
• Create or tolerate harassment based on sexual orientation or gender identity;
• Use customer preference to fire, refuse to hire, or assign work;
• Discriminate because an individual does not conform to a sex-based stereotype; or
• Require a transgender employee to dress or use a bathroom or locker room in accordance with the employee's sex assigned at birth.

The EEOC's guidance that employers cannot require trans employees to use the bathroom or locker room of the sex they were assigned at birth is the most controversial. The guidance seems to contradict the majority opinion in Bostock, which stated, "Under Title VII, too, we do not purport to address bathrooms, locker rooms, or anything else of the kind." As a result, the three Republican members of the EEOC criticized the guidance as beyond the Supreme Court decision.