On June 15, 2020, the United States Supreme Court decided the landmark case of Bostock v. Clayton County, Georgia, holding that employment discrimination due to sexual orientation or transgender status is prohibited by Title VII of the Civil Rights Act of 1964 (Title VII) as discrimination on the basis of sex. On June 15, 2021, the one-year anniversary of the Bostock decision, the Equal Employment Opportunity Commission (EEOC) issued guidance about sexual orientation and gender identity (SOGI) discrimination in the form of a technical assistance document and other resources. See: https://www.eeoc.gov/sexual-orientation-and-gender-identity-sogi-discrimination.
Prohibited Discrimination
Title VII prohibits SOGI discrimination in hiring, firing, pay, job assignments, promotion, demotion, layoff, training, fringe benefits, and all other terms and conditions of employment. For example:
- An employer cannot discriminate against an individual because the employer believes that the individual acts or appears in ways that do not conform to sex-based stereo types; e.g., a man who is perceived to act or appear in stereotypically feminine ways, or a woman who is perceived to act or appear in stereotypically masculine ways.
- An employer cannot require a transgender employee to dress in accordance with the employee’s sex assigned at birth.
Customer Preference
An employer cannot take discriminatory action based on customer or client preference. For example:
- An employer cannot take an assignment away from an employee because a customer would prefer to work with someone who has a different sexual orientation or gender identity.
- An employer cannot segregate employees based on actual or perceived customer preference, such as by keeping LGBTQ+ employees out of public-facing positions.
Harassment
It is unlawful to subject an employee to harassment based on sexual orientation or gender identity. Examples of prohibited harassment include:
- Offensive or derogatory remarks about sexual orientation (e.g., being gay or straight), or about an individual’s transgender status or gender transition.
- Intentionally and repeatedly using the wrong name and pronouns for a transgender employee. (However, the EEOC stated that accidental misuse of a transgender employee’s preferred name or pronouns probably would not be considered harassment.)
Bathroom Access
If an employer maintains separate bathroom, locker room, and/or shower facilities for men and women, the employer cannot deny an employee equal access to the facilities that correspond to the employee’s gender identity. For example, all men (including transgender men) should be allowed to use the men’s bathroom and all women (including transgender women) should be allowed to use the women’s bathroom. (“Transgender man” refers to someone who was assigned the female sex at birth but who identifies as male. “Transgender woman” refers to someone who was assigned the male sex at birth but who identifies as a female. A person does not have to undergo any medical procedure to be considered a transgender man or a transgender woman.)
SOGI Discrimination and Retaliation
The Title VII prohibition against retaliation applies to SOGI discrimination. It is unlawful for an employer to retaliate against an employee for filing a discrimination charge or complaint, participating in an investigation or proceeding, or opposing unlawful discrimination.
Conclusion
The newly posted EEOC materials do not have the force and effect of laws or regulations. However, they clarify the EEOC’s position on SOGI discrimination and provide guidance for employers. Employers should familiarize themselves with the new EEOC materials. Employers should also review their handbooks, policies and procedures to determine whether any changes are needed as a result of the Bostock decision and the EEOC guidance.
This blog and these materials are not intended to provide legal advice. They do not represent the legal opinions of the firm, nor should they be regarded as the legal positions of any client of the law firm of Mateer Harbert, P.A. They are provided for general informational purposes only. These materials should not be used as a substitute for the advice of qualified legal counsel.