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EEOC Issues Guidance on Sexual Orientation and Gender Identity Discrimination

Posted: July 8, 2021

The Equal Employment Opportunity Commission (EEOC) recently issued a technical assistance document for “Protections Against Employment Discrimination Based on Sexual Orientation or Gender Identity.” The document briefly explains the Supreme Court’s decision in Bostock v. Clayton County, Georgia, No. 17-1618 (S. Ct. June 15, 2020) and the EEOC’s established legal positions on sexual-orientation and gender-identity-related workplace discrimination issues.

In Bostock, the Supreme Court held that Title VII of the Civil Rights Act of 1964, which prohibits discrimination because of “sex,” bars employers from discriminating based on an employee’s sexual orientation or gender identity. (We previously discussed the Bostock ruling here.) The ruling came through a set of three cases that were consolidated for oral argument. All three cases turned on the same issue: whether the phrase “sex,” as used in Title VII, includes an individual’s sexual orientation or gender identity. The Court explained, “discrimination based on homosexuality or transgender status necessarily entails discrimination based on sex; the first cannot happen without the second.” For example, if an employer fires an employee because she is a woman who is married to a woman, but would not do the same to a man married to a woman, the employer is taking an action because of the employee’s sex. Similarly, if an employer fires an employee because that person was identified as male at birth but uses feminine pronouns and identifies as a female, the employer is taking action against the individual because of sex since the action would not have been taken but for the fact the employee was originally identified as male. The Court was careful to note that it was not addressing other issues, including actions based upon religious principles or any issues relating to separate facilities.

The June 15, 2021 EEOC technical assistance document reviews the Bostock ruling, and reminds employers that Title VII protections extend to job applicants, as well as employees. The document further explains that an employer’s discriminatory action cannot be justified by customer or client preferences, nor can an employer discriminate based on a worker’s failure to conform to gender stereotypes. Moreover, while employers may still have separate bathrooms, locker rooms and showers for men and women, or may choose to have unisex facilities, an employer may not deny an employee equal access to a bathroom, locker room or shower that corresponds to the employee’s gender identity. With regard to the use of gender pronouns, intentional and repeated use of the wrong name or pronoun to refer to a transgender employee could contribute to an unlawful hostile work environment.

The June 15, 2021 EEOC technical assistance document can be found at https://www.eeoc.gov/laws/guidance/protections-against-employment-discrimination-based-sexual-orientation-or-gender.

A related EEOC fact sheet for facility/bathroom access and gender identity may be found at https://www.eeoc.gov/laws/guidance/fact-sheet-facilitybathroom-access-and-gender-identity.

If you have any questions, or would like to discuss how these laws, guidelines and court decision will impact your business, please contact your regular Saul Ewing Arnstein & Lehr LLP labor and employment attorney.