EEOC Issues Guidelines on Sexual Orientation and Gender Discrimination

By Douglas Lipsky

In June, the U.S. Equal Employment Opportunity Commission (EEOC) issued guidance on workplace discrimination based on sexual orientation or gender identity. The EEOC also announced new resources about workplace rights for the LGBTQ+ community. 

The employment watchdog is tasked with implementing the U.S. Supreme Court’s landmark ruling in Bostock v. Clayton County recognizing discrimination based on sexual orientation or gender identity violates Title VII of the Civil Rights Act of 1964 (Title VII). 

Despite the Bostock decision and EEOC’s enforcement powers, members of the LGBTQ+ community continue to face employment discrimination. If you have been treated unfairly by an employer, it takes a skilled employment lawyer to protect your rights. This article is a brief look at EEOC’s guidance on employment discrimination under the Bostock ruling.

Title VII Prohibits Discrimination Based on Sexual Orientation or Sexual identity

In Bostock, the Supreme Court ruled that discrimination based on sexual orientation or gender identity violates Title VII because it is discrimination based on sex. The case consolidated three discrimination claims where employees alleged they were fired after their employers learned they were gay or transitioning from one gender to another. 

In short, the high court held that Title VII makes it unlawful for covered employers to consider sexual orientation or transgender status when making employment decisions (e,g, hiring firing, compensating, promoting, training).

Customer/Client Preference Does Not Justify Discrimination Against an LGBTQ+ Employee

According to the guidance, an employer cannot refuse to hire, fire, or reassign an LGBTQ+ employee because clients or customers prefer to work with people of certain sexual orientations or identities. Also, an employer cannot assign an LGBTQ+ worker to a position that does not interact with the public because of their protected status.

Employment Decisions Cannot be Based on Conforming Stereotypes About Men and Women

An employer cannot discriminate based on gender stereotypes. For example, an employer is barred from reassigning a male employee because he is perceived to act in stereotypically feminine ways. Similarly, an employer cannot require a transgender worker to dress according to their assigned sex at birth. In sum, employers cannot have gender-specific requirements about an employee’s appearance.

Using Inconsistent Names or Pronouns May Be Harassment

The EEOC’s guidance notes that using names or pronouns inconsistent with an individual’s gender identity may be considered unlawful harassment if it rises to the level of a hostile work environment. In particular, an employer that intentionally and consistently refuses to use an employee’s preferred name or pronoun may be deemed to be harassing that employee in violation of Title VII because it is harassment based on sex.

Why This Matters

The EEOC’s guidance on employment discrimination based on sexual orientation or gender identity is intended to inform LGBTQ+ employees about their rights. Ultimately, the best way to protect your rights if you have been subjected to discrimination or harassment because of your protected status is to talk to an employment lawyer.

About the Author
Douglas Lipsky is a co-founding partner of Lipsky Lowe LLP. He has extensive experience in all areas of employment law, including discrimination, sexual harassment, hostile work environment, retaliation, wrongful discharge, breach of contract, unpaid overtime, and unpaid tips. He also represents clients in complex wage and hour claims, including collective actions under the federal Fair Labor Standards Act and class actions under the laws of many different states. If you have questions about this article, contact Douglas today.