On June 15, 2021, the EEOC issued a new technical assistance document (the “Guidance”) which aims to “educate employees, applicants, and employers about the rights of all employees, including lesbian, gay, bisexual and transgender workers, to be free from sexual orientation and gender identity discrimination in employment.” The Guidance was issued on the one-year anniversary of the U.S. Supreme Court’s landmark decision in Bostock v. Clayton County, where the Court held that Title VII of the 1964 Civil Rights Act outlawed workplace discrimination based on sexual orientation and transgender status. The EEOC made clear that the information contained in the Guidance was not new policy; rather, the Guidance is intended only to provide clarity regarding existing requirements under the law.
The Bostock Decision
The Bostock case was a consolidation of three cases alleging discrimination against LGBTQ+ workers, which the Supreme Court decided together in a single opinion. Gerald Bostock, a child welfare services coordinator, was fired after his employer learned he joined a gay softball league. Donald Zarda was fired from his position as a skydiving instructor after his employer learned that he was gay. Aimee Stephens, a funeral director, was fired after her employer learned she was going to begin presenting as female after undergoing gender reassignment surgery.
The Supreme Court held that employment discrimination based on sexual orientation or transgender status constitutes discrimination “because of sex” and, therefore, violates Title VII. The Court acknowledged that, in 1964 when Title VII was enacted, few would have expected the law to apply to discrimination against gay and transgender persons. However, the majority of the Court found its holding inescapable given the plain language of the statute unambiguously prohibits the discriminatory practice. As Justice Gorsuch, writing for the majority, explained, “discrimination based on homosexuality or transgender status necessarily entails discrimination based on sex; the first cannot happen without the second.”
The Guidance provides added clarity about the obligations of employers and the rights of LGBTQ+ workers, including the following:
- Employers may not 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.”
- In certain circumstances, use of pronouns or names that are inconsistent with an individual’s gender identity may be considered unlawful harassment. While accidental misuse of a transgender employee’s preferred 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.”
- Employers cannot require a transgender employee to dress in accordance with the employee’s sex assigned at birth. “Prohibiting a transgender person from dressing or presenting consistent with that person’s gender identity would constitute sex discrimination.”
- Employers are prohibited from discriminating against an employee because that employee does not conform to a sex-based stereotype about feminine or masculine behavior (regardless of whether the employer knows the employee’s sexual orientation or gender identity).
- Employers cannot justify discriminatory action based on customer or client preferences. Employers may not fire, refuse to hire, or otherwise discriminate against someone because customers or clients would prefer to work with people who have a different sexual orientation or gender identity. For example, an employer cannot keep LGBTQ+ employees out of public-facing positions or direct those employees toward certain stores or geographic areas.
- Non-LGBTQ+ applicants and employees are also protected against sexual orientation and gender identity discrimination. For example, employers are prohibited from discriminating against employees because they are straight or cisgender.
While the EEOC stated that the information in the Guidance was not new policy, it is an important reminder to employers and workers alike of the rights of LGBTQ+ individuals to be free of discrimination in the workplace. Employers must be aware that Title VII’s prohibition of discrimination based on sex includes sexual orientation and gender identity.