EEOC Provides New Resources On Sexual Orientation and Gender Identity Rights in the Workplace

In honor of LGBTQ+ Pride Month and marking the one year anniversary of the Supreme Court’s decision in Bostock v. Clayton County, Georgia, the U.S. Equal Employment Opportunity Commission recently announced an upgrade to its website to include new resources for educating the public about the enforcement of employment rights for all employees, specifically including the rights of lesbian, gay, bisexual, transgender, queer and affiliated workers (LGBTQ+), to be free from discrimination, harassment or retaliation based on sex, sexual orientation or gender identity.

The Bostock decision consists of three separate cases involving three different employers in different states wherein the plaintiffs were LGBTQ+ workers that alleged sex discrimination under Title VII of the Civil Rights Act (Title VII), which the Supreme Court decided together in one opinion. In the Bostock case, Gerald Bostock (a child welfare services coordinator) was terminated after his employer learned he had joined a gay softball league. In the second case, Donald Zarda (a skydiving instructor) was fired after his employer learned he was gay. In the final case, Aimee Stephens (a funeral director) was fired after her employer learned she was transitioning from a male to a female.

The Supreme Court held in Bostock that terminating employees because of their sexual orientation or transgender status violates Title VII’s prohibition against discrimination based upon sex. For more than 50 years this issue has long been debated in courts across the country, but the Supreme Court finally settled this issue in this monumental decision. Thus, employees and employers need to educate themselves on a broader scope of protections afforded to employees on the basis of sexual orientation and transgender status. To assist in the education process, the EEOC has consolidated information on sexual orientation and gender identity discrimination (SOGI) under Title VII on a new landing page or area of its website.

The new landing page contains detailed information about SOGI, including the following:

• An employer covered under Title VII is not allowed to discriminate against job applicants or employees because of their sexual orientation or gender identity. Specifically, employers cannot, among other things, terminate, refuse to hire, demote, or take assignments away from an employee because customers or clients would prefer to work with people who have a different sexual orientation or gender identity.
• Title VII does not prohibit “simple” teasing, offhand comments or isolated incidents that are not considered serious. However, frequent or severe conduct could be considered unlawful harassment that creates a hostile work environment when it results in an adverse employment decision, such as termination, demotion, or a pay cut.
• Accidental misuse of a transgender employee’s preferred name and pronouns does not violate Title VII, but intentionally and repeatedly using the employee’s wrong name and pronouns could be deemed to contribute to an unlawful hostile work environment.
• A harasser can include the victim’s supervisor, a supervisor in another department, co-worker, client/customer or contractor.
• Prohibiting a transgender person from dressing or presenting in the workplace consistent with that person’s gender identity would constitute sex discrimination.
• The landing page also includes electronic links to additional resources that provide information on how private sector, state/local government or federal government employees can file an EEOC charge, related laws for federal contractors and subcontractors enforced under the U.S. Department of Labor’s Office of Federal Contract Compliance Programs, and a couple of guidance documents presented in a question-and-answer format. One document titled “Sex Discrimination” was issued on September 21, 2004. The other document titled, “Protections Against Employment Discrimination Based on Sexual Orientation or Gender Identity” was issued June 15, 2021. Finally, there is a link to a fact sheet that provides guidance on the definition of the term “transgender” and how employers should address certain situations related to facility/bathroom access and gender identity.

The Bostock decision, issued a year ago, is a major legal decision that significantly broadens the scope of sex discrimination under Title VII. The new portion of the EEOC website just added contains important detailed information on this topic that will allow LGBTQ+ employees the new rights provided by the 1964 Civil Rights Act

The information in this bulletin is not intended to be, and should not be construed as, legal advice for any particular fact situation. Feel free to contact us with specific questions. To find out more information about the products and services we provide, please visit our website or contact one of our attorneys (Jay Rollins, Debra Schwartz Charlotte Redo, or our paralegal Vicki Perry) at 404.844.4130.