As we prepare to turn the calendar to 2022, employers should be aware that in the last half of 2021, the United States Equal Opportunity Commission (“EEOC”) has tackled the hot topics of LGBTQ+ rights and technology/artificial intelligence. Briefly, here is what the EEOC has been up to in that regard:
Earlier this year, the EEOC announced the release of new LGBTQ+ resources for employers, employees, and applicants. The resources, which in part include FAQs, are intended to provide education about the rights of lesbian, gay, bisexual and transgender workers to be free from sexual orientation and gender identity discrimination in employment.
The materials are consolidated on one single page found here, and include a technical assistance document to help the public understand the United States Supreme Court’s landmark decision in Bostock v. Clayton County. That case, which was more fully outlined in our earlier VAC blog post, held that Title VII prohibits an employer from discriminating against an employee because of sexual orientation and/or gender identity. The Court concluded that, by definition, an employer commits sex discrimination in violation of Title VII when it fires an employee because he/she is gay or transgender. In other words, “it is impossible to discriminate against a person for being homosexual or transgender without [also] discriminating against an individual based on sex.”
In its latest technical guidance materials, the EEOC clarifies additional, more specific matters which stem from the Bostock decision. The new materials explain that:
- Title VII prohibits harassment on the basis of sexual orientation or gender identity, and the use of pronouns or names that are inconsistent with an individual’s gender identity could be considered harassment. In its decision in Lusardi v. Dept. of the Army, the Commission found that although accidental misuse of a transgender employee’s preferred name and pronouns does not violate Title VII, intentionally and repeatedly using the wrong name and pronouns to refer to a transgender employee could contribute to an unlawful hostile work environment.
- Non-LGBTQ+ job applicants and employees are protected against sexual orientation and gender identity discrimination. This means that employers are not allowed to discriminate against applicants or employees because the applicants or employees are, for example, straight or cisgender (someone whose gender identity corresponds with the sex assigned at birth).
- Employers’ discriminatory actions cannot be justified by customer or client preferences. This means that it would be discriminatory to keep LGBTQ+ employees out of public-facing positions, or to direct these employees toward certain stores or geographic areas, even if customers requested it.
- Employers cannot discriminate against an employee because the employer believes the employee acts or appears in ways that do not conform to stereotypes about the way men or women are expected to behave. Employers are not allowed to discriminate against men whom they perceive to act or appear in stereotypically feminine ways, or against women whom they perceive to act or appear in stereotypically masculine ways.
- Employers cannot require a transgender employee to dress in accordance with the employee’s sex assigned at birth.
- Employers can have separate, sex-segregated bathrooms, locker rooms, or showers for men and women. However, employers cannot deny an employee equal access to a bathroom, locker room, or shower that corresponds to the employee’s gender identity. In other words, if an employer has separate bathrooms, locker rooms, or showers 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.
Discrimination in Technology
The EEOC is also tackling the challenges caused by rapidly expanding technology in today’s world. Facebook and Instagram have recently faced intensifying criticism that their products, by design, sow political discourse and degrade self-esteem in their users. Critics claim that the same algorithms which foster the success of these social media giants also intentionally spread false stories of public interest under the guise that it is “news.”
The EEOC appears concerned that similar algorithms and other artificial intelligence (AI) used in employment and hiring might similarly have unforeseen adverse consequences on the employment process. In 2016, the EEOC began to examine the issue of AI, people analytics, and big data in hiring and other employment decisions. This year, the EEOC launched a new initiative to ensure that these emerging tools comply with federal civil rights laws that the agency enforces, including Title VII. The EEOC Chair stated that “the EEOC is keenly aware that these tools may mask and perpetuate bias or create new discriminatory barriers to jobs. We must work to ensure that these new technologies do not become a high-tech pathway to discrimination.”
According to the full news release, the EEOC initiative “will examine more closely how technology is fundamentally changing the way employment decisions are made. It aims to guide applicants, employees, employers, and technology vendors in ensuring that these technologies are used fairly, consistent with federal equal employment opportunity laws.” Briefly, the EEOC plans to:
- Establish an internal working group to coordinate the agency’s work on the initiative;
- Launch a series of listening sessions with key stakeholders about algorithmic tools and their employment ramifications;
- Gather information about the adoption, design, and impact of hiring and other employment-related technologies;
- Identify legally compliant practices with regard to technology; and
- Issue technical assistance to provide guidance on algorithmic fairness and the use of AI in employment decisions.
Stay tuned for more information concerning these and other matters as we leave 2021 behind and enter a new year.