EEOC Guidance on Sexual Orientation and Gender Identity Discrimination
Aug 13, 2021 | Written by: | Share
Title VII of the Civil Rights Act of 1964 prohibits discrimination by employers on the basis of sex and other factors. Federal law does not, however, provide a specific definition of “sex” in the context of employment discrimination. A 2020 decision by the U.S. Supreme Court in Bostock v. Clayton County assisted in this regard and held that the firing of individuals because of their sexual orientation or transgender status violates Title VII’s prohibition of discrimination on the basis of sex. This decision involved three consolidated cases. The plaintiffs in two of the cases alleged that their employers fired them because of their sexual orientation. The plaintiff in the third case was a transgender woman who alleged that she was fired after she came out to her employer and began the process of transitioning.
The Supreme Court issued a single opinion in these three cases, addressing “whether an employer can fire somebody simply for being homosexual or transgender.” The Court’s conclusion was nothing short of clear: “An employer who fires an individual for being homosexual or transgender fires that person for traits or actions it would not have questioned in members of a different sex. Sex plays a necessary and undistinguishable role in the decision, exactly what Title VII forbids.”
Since the Bostock decision, the Equal Employment Opportunity Commission (EEOC) and other courts have interpreted Bostock’s holding to prohibit all forms of harassment and discrimination when done on the basis of sexual orientation and gender identity. The EEOC, specifically, stated that an employer may not justify discriminatory actions such as firing, segregation, or taking away assignments from an employee simply by citing “customer or client preferences.” Further, employers may not require transgender employees “to dress in accordance with [their] sex assigned at birth.” The guidance also notes that “intentionally and repeatedly using the wrong name and pronouns” could support a hostile work environment claim by a transgender employee. Likewise, employers are not permitted to discriminate against an employee because that employee does not conform to sex-based stereotypes involving traditional feminine or masculine behavior. Finally, the EEOC has asserted that 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. However, because the latter issue remains very controversial and the law around it is still developing, the Supreme Court expressly left this issue unaddressed in Bostock, stating: “Under Title VII, too, we do not purport to address bathrooms, locker rooms, or anything else of the kind.”
The EEOC also addressed the tension between protections for private employers and employees with strictly held religious beliefs by noting, “Courts and the EEOC consider and apply, on a case by case basis, any religious defenses to discrimination claims, under Title VII and other applicable laws.”
This new guidance makes it evident that any discrimination based on sexual orientation or gender identity is prohibited under Title VII. Accordingly, employers should update their policies and practices to comply with the EEOC’s position. Should you have questions about compliance matters in this area, or if you are involved in a dispute with an employer concerning any of these issues, please contact our office.
Sharon M. Flynn, Esq. is an associate with Gebhardt & Kiefer, PC, and practices primarily in the areas of general litigation, employment law, and insurance defense.
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Any statements made herein are solely for informational purposes only and should not be relied upon or construed as legal advice.