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 U.S. Supreme Court’s June 2020 decision in Bostock v. Clayton County, Georgia, and the agency’s established legal positions on sexual orientation and gender identity-related workplace discrimination issues.

Background on Bostock

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. The ruling came through a set of three cases 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.” Here are some examples:

• If an employer fires an employee because she is a woman who is married to a woman but wouldn’t do the same to a man married to a woman, it’s taking an action because of the employee’s sex.
• Similarly, if an employer fires an employee because she was assigned as male at birth but uses feminine pronouns and identifies as a female, it’s taking action against her because of sex since the move wouldn’t have been made but for the fact she was originally assigned as male.

The Court was careful to note it wasn’t addressing other issues, including actions based on religious principles or any matters relating to separate facilities.

EEOC’s Recent Reminders

The EEOC’s recent technical assistance document reviews the Bostock ruling and reminds employers that Title VII protections extend to job applicants as well as employees. The document also explains:

• An employer’s discriminatory action can’t be justified by customer or client preferences, nor can it discriminate based on a worker’s failure to conform to gender stereotypes.
• Although employers may still have separate bathrooms, locker rooms, and showers for men and women (or may choose to have unisex facilities), they may not deny an employee equal access to any of the facilities that correspond to the individual’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.

Angella N. Middleton is an attorney with Saul Ewing Arnstein & Lehr LLP in Philadelphia. You can reach her at [email protected].

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