Elizabeth Houghton LaGreca, Member of the Firm in the Employment, Labor & Workforce Management practice, in the firm’s New York office, was quoted in the Bloomberg Law Daily Labor Report, in “LGBTQ+ Protections in New EEOC Guidance Face Legal Headwinds,” by Riddhi Setty. (Read the full version – subscription required.)

Following is an excerpt:

The EEOC’s long-awaited draft workplace harassment enforcement guidance puts a strong focus on protections for LGBTQ+ workers’ rights, but aspects of the new standards are poised for legal pushback in a heated political climate.

The draft guidance, which is open for comment until Nov. 1, includes instructions for employers to provide anti-harassment policies, trainings, and complaint procedures and to train supervisors to root out harassment. The US Equal Employment Opportunity Commission unanimously approved new harassment guidance in 2017, but it was reportedly held up by the Trump administration due to internal disagreements over LGBTQ+ worker protections and never finalized.

The US Supreme Court has since ruled that workplace discrimination based on sexual orientation and gender identity is illegal under existing federal civil rights law, bolstering the commission’s guidelines. But employment attorneys say that won’t shield the EEOC from critics of its definition of LGBTQ+ harassment, which covers behaviors from assault to misgendering to preventing workers from using the bathroom that fits their gender identity. …

Religious Objections

The draft guidance released by the EEOC Sept. 29 would be the first update to its workplace antiharassment guidelines since 1999. As of Oct. 20, more than 7,500 comments on the guidance have already been posted on Regulations.gov, signaling strong public interest.

Elizabeth Houghton LaGreca, an employer-side attorney at Epstein, Becker & Green PC, said the draft guidance focuses more on LGBTQ+ worker rights following the Supreme Court’s decision in Bostock v. Clayton County.

The EEOC’s guidance says “misgendering,” or intentionally and repeatedly using pronouns that don’t align with an individual’s gender identity constitutes harassment. Employment attorneys said they anticipate this will rile up those who object on religious grounds to using the pronouns another worker uses to fit that employee’s gender identity.

“I think we’re seeing a lot of more religious rights-type cases, and how those interplay with LGBT rights in the workplace,” LaGreca said. “Someone’s religious expression conflicts with the use of gender pronouns in the workplace, balancing those interests.”

These issues will continue to be litigated in the wake of the EEOC’s guidance, LaGreca said. …

Uncertain Path …

Although the decision was issued recently, the ideological makeup of the Supreme Court has since changed significantly, paving the way for cases that may create potential conflicts with the ruling, LaGreca said. …

Despite the potential legal ramifications, the EEOC’s guidance remains a reference point for many and is likely to be used by both judges and litigants.

LaGreca said that the agency’s new guidance aligns with its strategic enforcement plan and “gives employers a good idea of what we can expect from the EEOC in the next couple of years in terms of priorities and enforcement.”

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