EEOC Issues Fact Sheet Regarding Protections Against Discrimination Based on Sexual Orientation or Gender Identity

On Tuesday, June 15th, 2021, the one-year anniversary of the landmark Supreme Court decision Bostock v. Clayton County, the U.S. Equal Employment Opportunity Commission (EEOC) released a technical assistance document laying out guidance regarding protections against employment discrimination based on sexual orientation or gender identity.

In Bostock, the U.S. Supreme Court held that federal law protections against sex discrimination include employment discrimination against an individual on the basis of sexual orientation or transgender status. However, even before the Supreme Court ruled last summer, the EEOC, in 2012, decided that discrimination against an applicant for federal employment based on gender identity is discrimination based on sex and, in 2015, decided that sexual orientation discrimination states a claim of sex discrimination under Title VII of the Civil Rights Act of 1964. Due to these past decisions, the EEOC described its guidance from last week as clarification rather than new policy or law.

Title VII protections cover job applicants, current employees (including full-time, part-time, seasonal, and temporary employees), and former employees in every state, regardless of citizenship or immigration status, if their employer has 15 or more employees. Title VII applies to private-sector employers, to state and local government employers, to unions and employment agencies, and to the federal government as an employer. Employers with fewer than 15 total employees are not covered by Title VII. Title VII, generally, does not apply to individuals who are found to be independent contractors.

As a federal law, Title VII protections against discrimination based on sexual orientation or gender identity extend nationwide regardless of state or local laws. New York State Human Rights Law also protects employees from being discriminated against on the basis of their actual or perceived sexual orientation as well as their gender identity or expression. New York State Human Rights Law covers all employers with four or more employees, except in the case of sexual harassment in which all employers are covered regardless of their number of employees. In 2020, New York City Human Rights Law extended employment anti-discrimination protections to independent contractors and freelancers.

The EEOC guidance clarified a few specific recurring questions regarding protections for LGBT+ employees:

1. An employer covered by Title VII is not allowed to fire, refuse to hire, segregate, or take assignments away from someone (or discriminate in any other way) because customers or clients would prefer to work with people who have a different sexual orientation or gender identity.
2. Whether or not an employer knows an employee’s sexual orientation or gender identity, employers are not allowed to discriminate against an employee because that employee does not conform to a sex-based stereotype about feminine or masculine behavior.
3. Prohibiting a transgender person from dressing or presenting consistent with that person’s gender identity would constitute sex discrimination.
4. 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.
   Intentionally and repeatedly using the wrong name and pronouns to refer to a transgender employee could contribute to an unlawful hostile work environment.