Mailbag: Should we follow EEOC’s lead on gender identity policy?

In HR Dive’s Mailbag series, we answer HR professionals’ questions about all things work. Have a question? Send it to [email protected].

Q: The U.S. Equal Employment Opportunity Commission is expected to rescind guidance that addresses harassment based on gender identity. Should we remove mentions of gender identity from our anti-harassment policy?

A:  It would be “a significant risk” for an employer to remove sexual orientation and gender identity from its policies on workplace harassment, according to Scott Moss, professor at the University of Colorado Law School.

The U.S. Supreme Court in 2020 held that Title VII prohibits employment discrimination on the basis of a worker’s sexual orientation or gender identity (Bostock v. Clayton County, Georgia).

A few years later, EEOC included this interpretation in guidance on workplace harassment, taking the position that, for example, using incorrect pronouns can constitute harassment. A judge struck down that and other portions of the guidance this year, and EEOC is widely expected to rescind the document in the near future.

Still, “I find it almost impossible to read Bostock as not saying harassment based on gender identity is illegal,” Moss said Friday at the American Bar Association’s annual labor and employment law conference. If an employer removes those provisions from its policies, “I think you’re running afoul of Bostock,” he continued.

Moss’ advice echoes that of other attorneys: “[I]t is important to acknowledge that discrimination against transgender and nonbinary individuals remains illegal under federal law, as well as under many state and local laws, and employers need to continue to take measures to ensure that these rights are protected,” Tripp Scott attorneys wrote for HR Dive earlier this year. “Unless the Bostock decision is reversed,” they said, “employers can anticipate that charges of discrimination based on sexual orientation and gender identity will continue to be filed.”