On October 2, 2023, the EEOC published proposed guidance in the Federal Register for comment. The proposed guidance clarifies situations related to harassment and discrimination based on LGBTQ+ status. Once finalized, the guidance will consolidate and supersede several earlier EEOC guidance documents. This comes after the 2020 Supreme Court case, Bostock v. Clayton County Georgia, a case which had already supported the position that Title VII of the Civil Rights Act which prohibits discrimination based on sex includes sexual orientation and gender identity discrimination.

The proposed guidance addresses the following examples of harassment based on sexual orientation and/or gender identity:

  1. Epithets
  2. Physical Assault
  3. Harassment
  4. Intentional and repeated misuse of a name and/or an individual’s pronoun (misgendering)
  5. Denying access to a bathroom or other sex-segregated facility based on a person’s gender identity.

The guidance also clarifies that intentional misgendering can be considered harassment. The comment period ended on November 1, 2023. Once finalized, employers who had not already updated their trainings to include examples of misgendering and bathroom access may want to bring their trainings up-to-date.

At Southwestern HR Consulting (SWHRC), we can assist you with providing updated training to keep you in compliance with employment laws. Contact us today!

Magdalena Vigil-Tullar

Written by | Magdalena Vigil-Tullar


Phone: 505-270-7494 | Email:

PO Box 14274 | Albuquerque, NM 87191

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