Moving Towards Equality in the Workplace for LGBTQI+ Employees

This article is a publication of EEOC’s Office of Federal Operations (OFO).

Carlton M. Hadden, Director, OFO

Virginia Andreu, Assistant Director, OFO’s Special Operations Division

Editor: Robyn Dupont

Writers: Special Operations Division

This article is based generally on EEOC documents and articles available to the public at EEOC’s website: http://www.eeoc.gov, as well as EEOC case law, court decisions and past Digest articles.[1]

 

Introduction

Five decades ago, homosexuality was considered a mental disorder.[2]  Many LGBTQI+ people lived in isolation and secrecy.[3]  They could easily be fired or denied a job because of their sexual orientation.  Today, LGBTQI+ people openly serve in the military, appear in the media, and occupy prominent positions in government.  LGBTQI+ rights have expanded through the U.S. Supreme Court’s landmark decision in Bostock v. Clayton County,[4] President Biden’s executive orders,[5] and explicit employment discrimination protections codified into law in 22 states.  However, continued discrimination in housing, healthcare, schools, and other areas still present barriers to full equality for LGBTQI+ individuals.

Even before Bostock, the U.S. Equal Employment Opportunity Commission (EEOC), as well as many state and federal courts, recognized that discrimination based on sexual orientation or gender identity is a form of sex discrimination that violates Title VII.  However, despite the legal protections established by the EEOC, and state and federal courts, state legislatures continue to advance bills that target transgender people and limit legal protections for LGBTQI+ individuals.  According to an NBC News analysis of data from the American Civil Liberties Union and Freedom for All Americans, nearly 670 anti-LBGTQI+ bills have been filed in state legislatures since 2018, 238 during the first three months of 2022 alone.[6]

Currently, only 22 states and the District of Columbia have laws explicitly prohibiting workplace discrimination based on gender identity and sexual orientation.[7]  In addition, nine states have extended existing sex discrimination laws to cover sexual orientation and gender identity.[8]  Wisconsin explicitly prohibits employment discrimination based on sexual orientation, but makes no mention of gender identity.[9]  In contrast, 17 states offer no legal protection against discrimination based on LGBTQI+ status.[10]

Historical Background

There have been many important milestones in the struggle for equity, inclusion, and civil rights for LGBTQI+ individuals.  Examining this struggle from a historical perspective provides context on the progress made towards equality.

The 1940s through 1960s

Beginning in the late 1940s through the 1960s, due largely to fears of Communism and national security concerns, interrogation of one’s sexuality became commonplace in the federal workplace as employers attempted to “root out” LGBTQI+ employees.[11]  Employees were asked whether they identified as “homosexual” or had ever had a same-sex relationship.[12]   Thousands of gay employees were fired or forced to resign from the federal workforce because of their sexuality.  This period of time is often known as the “Lavender Scare.”

In 1947, the U.S. Park Police initiated a “Sex Perversion Elimination Program,” targeting gay men for arrest and intimidation.[13]  In 1950, the U.S. Senate’s Special Subcommittee on Investigations issued a report entitled “Employment of Homosexuals and Other Sex Perverts in Government.”[14]   The stated purpose of the report was “to determine the extent of the employment of homosexuals and other sex perverts in Government; to consider reasons why their employment by the Government is undesirable; and to examine into the efficacy of the methods used in dealing with the problem.”[15]  The report concluded that since homosexuality was “a mental illness,” homosexuals “constitute security risks” to the nation.[16]

In 1953, President Eisenhower issued Executive Order 10450,[17] which disqualified anyone who had a “sexual perversion” from federal employment.  The Eisenhower administration targeted employees whose gender expression did not conform to sex-based stereotypes, and approximately 10,000 federal employees lost their jobs.[18]

The Lavender Scare continued through the 1960s as part of the broader “Red Scare” that targeted anyone suspected of being a Communist.  Much of the Red Scare rhetoric focused on morality, and homosexuality was perceived as sharing many of the same traits and security risks as Communism.[19]  Despite admitting that LGBTQI+ employees were never found to be less efficient at work, the Civil Service Commission continued to exclude LGBTQI+ employees from federal service.[20]

Title VII of the Civil Rights Act of 1964[21] prohibits employment discrimination by private and public sector employers on the basis of race, color, religion, sex, and national origin.  This legislation is considered one of the crowning legislative achievements of the Civil Rights Movement. 

Yet even after the passage of Title VII, federal courts provided minimal relief for LGBTQI+ employees during the 1960s.  For example, in Dew v. Halaby,[22] the U.S. Court of Appeals for the D.C. Circuit upheld the termination of an air traffic controller because he engaged in sexual activity with another man on four occasions during his teenage years.  But by 1969, federal courts began recognizing some civil rights protection for LGBTQI+ individuals.  In its 1969 decision Norton v. Macy,[23] the D.C. Circuit overturned the plaintiff’s termination, explaining that sexual activities must have some effect on federal service to justify termination.  Nevertheless, the examples of “effect” cited by the Court were so broad they essentially disqualified most LGBTQI+ individuals.

By the late 1960s, congressional and judicial efforts to prohibit discrimination against LGBTQI+ individuals began to grow out of increasing activism by gay and transgender individuals.  This was sparked by the 1969 Stonewall Rebellion, a six-day protest following a raid at the Stonewall Inn, one of the most popular gay bars in New York City.[24]  Thousands of protesters gathered at the Stonewall Inn, and intense fighting occurred throughout the following week between protesters and the police.[25]  The first Pride March was held the following year on June 28, 1970, the one-year anniversary of the Stonewall Uprising.[26]

The 1970s through 1990s

During the 1970s, there was new support for civil rights protections for federal LGBTQI+ workers.  In May 1974, Representative Bella Abzug (D-NY) introduced the Equality Act of 1974, which sought to prohibit discrimination on account of sex, marital status, or sexual orientation in places of public accommodation, public facilities, and public education.[27]  The Act would also have prohibited discrimination in federally assisted programs, housing, and financial services.[28]  The Act marked the first federal legislation in the United States that would have prohibited discrimination based on sexual orientation.  It did not, however, include protections for transgender people.  Despite the more favorable climate in the country for the expansion of civil rights, the Equality Act of 1974 did not make it out of committee in the House of Representatives and was never introduced in the Senate.  Similar bills and efforts also failed in the late 1970s.

Congress did, however, pass the Civil Service Reform Act in 1978, the first major overhaul of the federal personnel system in almost 100 years.  The Civil Service Commission was abolished, and the responsibility for enforcing equal employment laws in federal agencies was transferred to the EEOC.  The Act also barred discrimination based on conduct that did not affect job performance.[29]  In 1980, the Office of Personnel Management (OPM) found that this provision applied to sexual orientation, and that individuals who believed they were discriminated against based on their sexual orientation could, under certain circumstances, seek assistance from the Office of Special Counsel (OSC), and/or the Merit Systems Protection Board (MSPB).[30]

Two landmark U.S. Supreme Court decisions paved the way towards recognition that discrimination based on sexual orientation and gender identity are forms of sex discrimination that violate Title VII.  In the 1989 decision of Price Waterhouse v. Hopkins,[31] the Supreme Court held that employment decisions based on sex stereotypes are actions taken “because of…sex” and, therefore, violate the “sex” basis protected under Title VII.[32]

Subsequently, in the 1998 decision in Oncale v. Sundowner Offshore Services, Inc.,[33] the Supreme Court held that Title VII prohibits sex-based harassment even when the perpetrator and the victim are of the same sex.  The Court noted that, even if the Congress might not have envisioned Title VII covering same-sex harassment, Title VII “must extend to [sex-based] discrimination of any kind that meets the statutory requirements.”[34] 

In addition, on May 28, 1998, President Clinton signed Executive Order 13087,[35] which amended President Nixon’s Executive Order 11478[36] to prohibit discrimination based on sexual orientation in the competitive service of the federal civilian workforce.

From 2000 to 2019

Following the Supreme Court’s ruling in Oncale, the EEOC held in the 2000 decision Morris v.  U.S. Postal Service[37] that the complainant stated a cognizable claim under Title VII for sex-based discrimination by a management official who was the same sex as the complainant.  The complainant (a woman) claimed that a management official (also a woman) discriminated against her on the basis of her sex after the complainant discontinued a sexual relationship with her.  The Commission found that the Agency erroneously dismissed the claim, in that it had mischaracterized the complaint as concerning discrimination based on the complainant’s sexual orientation.  Although Price Waterhouse established that sex stereotyping is illegal in 1989, it was not until 2011 that the EEOC held that sexual orientation discrimination can constitute a claim of sex discrimination under Title VII when the discrimination is based on gender stereotypes.[38]

In addition, lower federal courts also began to recognize that claims against LGBTQI+ individuals could constitute claims of sex discrimination under Title VII.  For example, the U.S. District Court for the District of Columbia held in Schroer v. Billington[39] that  discrimination because an individual intends to change, is changing, or has changed his or her gender identity, including by changing aspects of his or her anatomical sex or gender expression, is prohibited by Title VII.  The Schroer court also held that an adverse action against a transgender employee because she fails to identify, look, or live in conformance with a preferred or expected gender norms is discrimination because of sex under Title VII. [40]

On April 20, 2012, the EEOC issued a landmark decision in Macy v. Department of Justice,[41] holding for the first time that discrimination against transgender employees is covered under Title VII.  The EEOC found that the complainant, a transgender woman, stated a viable claim of sex discrimination when the Agency revoked her job offer after she revealed that she was in the process of transitioning from male to female.  The complainant filed a formal complaint stating that she was discriminated against on the basis of "sex, gender identity (transgender woman) and on the basis of sex stereotyping."  The EEOC, however, determined that the entire claim should be investigated under Title VII, stating that each element of the complainant's claim was simply a different way of stating the same claim of discrimination based on sex, a claim cognizable under Title VII.  The EEOC held that a transgender person could establish a sex discrimination claim in various ways if they experienced discrimination on the basis of gender identity.  Furthermore, the EEOC concluded that intentional discrimination against a transgender individual because that person is transgender is, by definition, discrimination based on sex.  The EEOC’s decision in Macy, as well as other federal sector cases, began to raise awareness of the inextricable connection between gender identity, sexual orientation, sex stereotyping, and the discrimination on the basis of sex.

In 2012, in order to reduce employment discrimination in the workplace, the EEOC adopted a Strategic Enforcement Plan (SEP) to integrate EEOC programs around a set of established enforcement priorities.[42]  The EEOC recognized “coverage of lesbian, gay, bisexual and transgender individuals under Title VII’s sex discrimination provisions” as an emerging issue of importance.[43]  The EEOC also acknowledged that this enforcement priority was consistent with positions the EEOC had taken regarding the intersection of LGBTQI+-related discrimination and Title VII's prohibition on sex discrimination.[44]  

In 2014, two years after the EEOC’s decision in Macy, President Obama signed Executive Order 13672, which extended employment discrimination protections in the federal civilian workforce to include discrimination on the basis of gender identity, and added sexual orientation and gender identity to the forms of discrimination that are prohibited in the hiring of federal contractors.

In addition, the EEOC filed two lawsuits in U.S. District Court in 2014 alleging gender identity discrimination.[45]  These suits, against Lakeland Eye Clinic and R.G. and G.R. Harris Funeral Homes, both alleging discrimination against transgender employees who were transitioning from male to female, alleged violations of Title VII based on sex stereotyping.  This was the first time the EEOC ever filed by the EEOC alleging sex discrimination against transgender individuals.

Applying Macy, the EEOC has continued to find that allegations of discrimination based on sexual orientation and gender identity violate Title VII’s prohibition against sex discrimination.  In its April 2015 decision in Lusardi v. Department of the Army,[46] the EEOC held that, in light of the agency’s admission that it restricted a female employee’s ability to use a common women’s restroom facility because of her transgender status, this action constituted disparate treatment based on sex.  The EEOC further found that the agency’s restroom restrictions combined with offensive remarks, including intentional repeated pronoun misuse, subjected her to hostile work environment harassment based on sex.

Similarly, the EEOC found in Complainant v. U.S. Postal Service[47] that complaints of transgender status should be processed under Title VII, and that intentional misuse of the employee’s name and pronoun may constitute sex-based disparate treatment and/or harassment.  Further, in Eric S. v. Department of Veterans Affairs,[48] the complainant alleged that the agency failed to revise its records as requested, pursuant to a change in gender identity.  The EEOC found this allegation stated a valid claim of sex discrimination.  Finally, the EEOC affirmed that claims of discrimination based on sexual orientation necessarily stated a claim of sex discrimination under Title VII in Baldwin v. Department of Transportation.[49]

In 2016, the EEOC filed the first two sex discrimination lawsuits in federal court advancing the EEOC’s position that sexual orientation discrimination violates Title VII.  The  EEOC filed the first lawsuit in the United States District Court for the Western District of Pennsylvania against Scott Medical Health Center (EEOC v. Scott Medical Health Center, P.C).[50]  The second lawsuit was filed in the United States District Court for the District of Maryland, Baltimore Division against Pallet Companies d/b/a IFCO Systems, NA (“IFCO”) (EEOC v. Pallet Companies d/b/a IFCO Systems NA, Inc.).[51]

2020 Marks New Era for LGBTQI+ Rights

On June 15, 2020, the U.S. Supreme Court issued a landmark 6-3 decision affirming that the prohibition on sex discrimination in Title VII extends to discrimination based on sexual orientation and gender identity.  This decision resulted from three cases: Altitude Express Inc. v. Zarda and Bostock v. Clayton County, Georgia, in which gay men were fired because of their sexual orientation, and R.G. & G.R. Harris Funeral Homes, Inc. v. Equal Employment Opportunity Commission, where a transgender woman was fired because of her gender identity.  The Supreme Court combined these cases and issued a single opinion—Bostock v. Clayton County—in which it held that “an employer who fires an individual merely for being gay or transgender violates Title VII.”[52]

Bostock explicitly reserved some issues for future cases.[53]  For example, the Court did not address various religious liberty issues, such as the First Amendment, Religious Freedom Restoration Act, and exemptions Title VII provides for religious employers.[54]  Also, Bostock does address whether the existence of sex-segregated restrooms or locker rooms in a workplace violates Title VII’s sex discrimination prohibitions, e.g., whether prohibiting a transgender woman from using the women’s restroom violates Title VII’s prohibition on sex discrimination with respect to the privileges of employment.  These issues have been previously addressed by the EEOC.[55]

Bostock has had wide-reaching impact, with a growing number of federal courts applying its analysis to other federal sex discrimination statutes to protect LGBTQI+ individuals in schools, housing, and healthcare.  Moreover, presidential action has also been a driving force toward LGBTQI+ equality in the workforce.  President Biden issued a series of Executive Orders beginning in January 2021 aimed at advancing equity and diversity in the federal government and throughout the nation.  Specifically, he signed Executive Order 13985, Advancing Racial Equity and Support for Underserved Communities Through the Federal Government,[56] and Executive Order 13988, Preventing and Combating Discrimination on the Basis of Gender Identity or Sexual Orientation.[57]  In these Executive Orders, President Biden expressed his policy of equity for all, “including those who have been historically underserved, marginalized, and adversely affected by persistent poverty and inequality,” including LGBTQI+ individuals.  President Biden pledged to fully enforce Title VII and other laws that prohibit discrimination on the basis of gender identity and/or sexual orientation.  These Executive Orders built on each other to address equity issues using a “whole of government” strategy to address inequities and support underserved communities.

On March 8, 2021, President Biden established the White House Gender Policy Council.[58]  The Council is charged with advancing gender equity and equality on a range of issues.  It also plays an essential role in the President’s efforts to advance equity in government policy for those who face discrimination and bias, including the LGBTQI+ community.  President Biden subsequently issued Executive Order 14035, Diversity, Equity, Inclusion, and Accessibility in the Federal Workforce,[59] establishing an ambitious, government-wide initiative designed to take a systematic approach to embedding diversity, equity, inclusion, and accessibility in federal hiring and employment practices, including advancing equity in the workplace for LGBTQI+ public employees.

The EEOC has also applied Bostock in a number of recent decisions. In Bart M. v. Department of the Interior,[60] the complainant timely applied for three supervisory positions.  The complainant was deemed qualified based on his application and was referred to the selecting official, but was not chosen for any of the positions despite being the top-ranked candidate by the selection panel.  The selecting official then decided to expand the field for “diversity” purposes citing the availability of three vacancies, even though there had been three vacancies since the beginning of the hiring process.  Moreover, the Agency deviated from standard hiring procedure on reference checks, giving them more weight than applications and interviews.  By weighing the references so highly, the complainant slipped from the top-ranked candidate to the eighth-ranked candidate, and he did not make the cut for a second-round interview.  In contrast, the selectees, who had less experience than the complainant, were afforded second interviews.  Further, the Agency failed to contact any of the references listed on the complainant’s application, and the negative references provided by certain supervisors were inconsistent with the complainant’s positive performance evaluation issued approximately one month before the references were provided.  The negative references also directly contradicted testimony of the supervisors the complainant listed as references.  Accordingly, the EEOC found that the Agency’s reasons for not selecting the complainant were pretextual, and that the complainant established that he was subjected to discrimination based on sexual orientation.  On appeal, the EEOC relied upon the Supreme Court’s holding in Bostock to find that discrimination based on sexual orientation or transgender status violates Title VII’s prohibition on discrimination “because of . . . sex.”[61]

In Thomasina B. v. Department of Defense,[62] the complainant alleged that she was subjected to harassment based on sex and sexual orientation.  Around July 2010, the complainant’s ex-husband, who worked at the facility, began to spread rumors that the complainant was gay and was dating a female coworker (CW1).  The record established that rumors about the complainant’s sexual orientation and relationship with CW1 spread throughout the workplace, even though Complainant did not disclose her sexual orientation or relationship status.  The EEOC found that these rampant rumors were based on the perception among the complainant’s coworkers and supervisors that she did not conform to societal sex-based stereotypes that women should only be attracted to men.  The EEOC further found that the complainant established that the harassment affected a term or condition of employment and created an intimidating, hostile, or offensive work environment, in that the rumors continued for over two years, and affected the way coworkers and management officials viewed the complainant and interacted with her.  The EEOC concluded that the complainant established that these rumors caused a hostile work environment.

The EEOC also found that the complainant’s supervisors subjected her to sex-based harassment.  After the supervisors learned of the rumors, they became concerned about the time the complainant spent with CW1, and began taking employment actions against the complainant.  For example, one supervisor stated that he “wrote up” the complainant because the time she spent away from her desk and in CW1’s building affected her work.  He acknowledged that he did not write up anyone else for this type of behavior.  The Agency acknowledged that management failed to present any documentation in the record to support their statements that the complainant was spending too much time in CW1’s building, or that the complainant’s work was somehow affected by her speaking with CW1.  Additionally, the Agency conceded that the complainant received a “fully successful” performance appraisal for the period in question.  Still, the supervisors frequently moved the complainant’s work locations away from CW1’s building and reprimanded the complainant if she went there, including when she worked with CW1 and when she went to the building to help another coworker at his request.  The record established that the supervisors’ actions were often motivated by a desire to keep the complainant and CW1 apart due to the rumors of the complainant’s sexual orientation and their relationship.  There was no indication that any supervisory official took any action to stop the rumors once they were brought to their attention, instead spreading the rumors themselves.  Thus, the EEOC found that the Agency was liable for both the co-workers’ and the supervisors’ harassment.

In Phyllis F. v. Department of Homeland Security,[63] the EEOC concluded that the complainant was subjected to harassment based on her sexual orientation.  The record revealed that, starting in February 2013, a coworker made several offensive comments toward the complainant about her sexual orientation and suggested that she needed a man in her life.  The complainant later overheard her coworker and supervisor discussing the incident, and the coworker again remarked about gay marriage.  The complainant found this offensive.  The coworker continued to make her disapproval of homosexuality and gay marriage known several months later.  The complainant understood that the coworker did not approve of her “lifestyle” and became fearful when working with the coworker.  Thus, the conduct unreasonably interfered with the complainant’s work performance.  The EEOC found that the complainant established that she was subjected to a hostile work environment because of her sex.

Finally, in Foster B. v. Department of Health and Human Services,[64] a Supervisory Health System Specialist alleged that one of his subordinates publicly disparaged him for being gay on four occasions.  According to the complainant, he asked the Chief Executive Officer for an incident report so that he could address the matter, but never received the report.  The Agency did not dispute that various incidents occurred as alleged, and there was abundant evidence in the record that the subordinate subjected the complainant to unwelcome harassment for approximately two years, consisting of comments based on the complainant’s sexual orientation, in and out of the complainant’s presence.  Multiple witnesses reported that the subordinate routinely referred to the complainant as a “faggot.”  In fact, the subordinate’s comments were often made or relayed to management officials who, rather than acting to discontinue the behavior, encouraged the complainant to file an EEO complaint.  The EEOC found that the complainant established that he was subjected to a hostile work environment because of his sex.

Current Issues Facing LGBTQI+ Workers

As the case law on civil rights for LGBTQI+ individuals continues to develop, many issues remain to be resolved.  Despite Bostock legal protections, LGBTQI+ workers still report high rates of discrimination in the employment arena. According to The State of the LGBTQ Community in 2020: A National Public Opinion Study, by Gruberg, Mahowald, and Halpin (October 6, 2020)[65]:

• Discrimination appears to affect the economic security of LGBTQI+ individuals. Nearly one-third of respondents (29 %) reported that discrimination moderately or significantly affected their financial well-being—including 37% of Black respondents and more than half (54 %) of transgender respondents.
• Respondents also reported troubles at work. More than one-third of LGBTQI+ Americans (35%) said their ability “to be hired” has been negatively affected to a moderate or significant degree in the past year due to discrimination, along with about 3 in 10 people (31%) who have faced negative impacts on their “salary or ability to be promoted” or their “ability to retain employment.”
• Transgender individuals reported the greatest difficulty with employment discrimination. More than half (53%) of transgender individuals expressed that discrimination moderately or significantly affected their capacity to be hired, with 4 in 10 saying that their ability to be hired was negatively affected to a significant degree. Nearly half (47%) of transgender respondents reported that discrimination had a moderate or significant impact on their ability to retain employment. In addition, 51% of Black transgender respondents reported that discrimination moderately or significantly affected their ability to be hired, compared with 33% of White transgender respondents. Further, 41% of Black transgender respondents reported that discrimination had a moderate or significant impact on their ability to retain employment, compared with 31% of White transgender respondents.
• While LGBTQI+ Baby Boomers (generally defined as those individuals born between 1946 and 1964) reported lower rates of negative impacts from discrimination on their psychological or physical well-being, they were the generation most likely to report that discrimination negatively affected their ability to be hired, their ability to retain employment, and their financial well-being to a significant degree. These effects appear larger among lower-income LGBTQI+ Baby Boomers than among higher-income ones: Nearly half (47%) of those earning less than $25,000 per year reported negative impacts from discrimination on their ability to be hired, compared with around one-quarter (26%) of those making more than $100,000 annually.

Clearly, more work is needed to ensure equity for LGBTQI+ employees and applicants for employment.  Employers can help lay the groundwork.  Best practices include:

• Update policies to explicitly state that discrimination and harassment based on sexual orientation and gender identity are prohibited under Title VII.
• Make federal employees and managers aware of their right under Title VII to file sexual orientation and gender identity discrimination EEO complaints.
• Inform private sector employees and managers of their right to file sexual orientation and gender identity discrimination charges with the EEOC.
• Use inclusive language in policies and activities involving employee relationships and family.
• Realize that not all employees and coworkers identify with the sex they were assigned at birth.
• Immediately and effectively address anti-LGBTQI+ remarks, actions, and conduct in the workplace.
• Provide comprehensive training on LGBTQI+ issues, including cultural competency training.
• Share information on LGBTQI+ cultural competency training opportunities and events.
• Incorporate LGBTQI+ content, where appropriate, into EEO and diversity and inclusion training.
• Promote and sponsor LGBTQI+ Special Emphasis programs and events.
• Keep current on evolving case law and government policies.
• Implement a gender transition policy.
• Clarify that all employees are legally required to have access to restrooms and locker rooms corresponding to their gender identity.
• Encourage employees to identify their pronouns in their email signature lines.

Recognition of the rights and protections for LGBTQI+ individuals in American society cannot be taken for granted.  Bostock and related decisions have provided ample support for the employment protections of LGBTQI+ individuals in the American workplace.  While there are still employment related issues that Bostock did not address, it is undisputed that the Supreme Court established that Title VII provides job protection for those who identify as gay or transgender. Thus, the EEOC’s longstanding position is fully supported.  During the 2021 Pride Month, EEOC Chair Charlotte Burrows remarked: “… a great deal of work remains to make real the promise of equality embodied in the Bostock decision.  EEOC remains committed to that work and is moving forward in the spirit of…[those] whose courage has advanced the cause of justice for LGBTQ+ persons.”[66]

 

 

 

 

[1] This article does not announce any new legal position taken by EEOC or create any legal rights or obligations.

[2] Until 1973, the American Psychiatric Association included homosexuality on its list of mental illnesses.  #FlashbackFriday -- Today in 1973, the APA Removed Homosexuality From List of Mental Illnesses - Human Rights Campaign (hrc.org)

[3] The acronym LGBTQI+ stands for Lesbian, Gay, Bisexual, Transgender, Queer, and Intersex. The plus (“+”) signals inclusion of other non-heterosexual and/or non-cisgender identities.

[4] Bostock v. Clayton County, 590 U.S. ___ , 140 S.Ct. 1731 (2020).

[5] Including Executive Order 14035 86 Fed. Reg. 34.601 (June 30, 2021).

[6] www.nbcnews.com/nbc-out/out-politics-and-policy/nearly-240-anti-lgbtq-bills-filed-2022-far-targeting-trans-people-rcna20418.

[7] California, Colorado, Connecticut, Delaware, District of Columbia (DC), Hawaii, Illinois, Iowa, Maine, Maryland, Massachusetts, Minnesota, Nevada, New Hampshire, New Jersey, New Mexico, New York, Oregon, Rhode Island, Utah, Vermont, Virginia, and Washington.  See State Maps - Human Rights Campaign (hrc.org)

[8]Alaska, Arizona, Florida, Kansas, Michigan, Nebraska, North Dakota, Pennsylvania, and Texas. See State Maps - Human Rights Campaign (hrc.org)

[9] See State Maps - Human Rights Campaign (hrc.org)

[10]Alabama, Arkansas, Georgia, Idaho, Indianan, Kentucky, Louisiana, Missouri, Montana, North Carolina, Ohio, Oklahoma, South Carolina, South Dakota, Tennessee, West Virginia, and Wyoming See “A Breakdown of LGBTQ Discrimination Laws by State” at  State Maps - Human Rights Campaign (hrc.org)

[11] National LGBT Chamber of Commerce, LGBT History: The Lavender Scare by James Gleason (Oct. 3, 2017) available at NGLCC | LGBT History: The Lavender Scare | nglcc.org.

[12] Id.

[13] Id.

[14] employment-homosexuals-serialset.pdf (stanford.edu).

[15] Id.

[16] Id.

[17] Executive Orders | National Archives

[18] National LGBT Chamber of Commerce, LGBT History: The Lavender Scare by James Gleason (Oct. 3, 2017) available at NGLCC | LGBT History: The Lavender Scare | nglcc.org.

[19] National LGBT Chamber of Commerce, LGBT History: The Lavender Scare by James Gleason (Oct. 3, 2017) available at NGLCC | LGBT History: The Lavender Scare | nglcc.org.

[20] Id.

[21] 42 U.S.C. § 2000e et seq.

[22] 317 F.2d 582 (D.C. Cir. 1963).

[23] 417 F.2d 1161 (D.C. Cir. 1969).

[24] Library of Congress, Today in History-June 28, The Stonewall Uprising of 1969, available at Today in History - June 28 | Library of Congress (loc.gov)

[25] Id.

[26] Id.

[27] See Congress.gov at H.R.14752 - 93rd Congress (1973-1974): Equality Act | Congress.gov | Library of Congress.

[28] Id.

[29] 5 U.S.C. § 2302(b)(10).

[30] Office of Personnel Management, Addressing Sexual Orientation and Gender Identity Discrimination in Federal Civilian Employment, A Guide to Employment Rights, Protections, and Responsibilities, (Rev. June 2015), available at addressing-sexual-orientation-and-gender-identity-discrimination-in-federal-civilian-employment.pdf (opm.gov).

[31] 490 U.S. 228 (1989).

[32] Price Waterhouse v. Hopkins, 490 U.S. 228 (1989)

[33] 523 U.S. 75, 80-82 (1998).

[34] Oncale v. Sundowner Offshore Services, Inc., 523 U.S. 75, at 79-80 (1998).

[35] Executive Order 13087 (May 28, 1998).

[36] Executive Order 11478 (Aug. 8, 1969).

[37] EEOC Appeal No. 01974524 (Feb. 9, 2000).

[38]  See  Veretto v. U.S. Postal Serv., EEOC Appeal No. 0120110873 (July 1, 2011) (finding that the complainant’s claim that he was subjected to a hostile work environment because he was marrying a man stated a viable claim of sex stereotyping) and Castello v .U.S. Postal Service,  EEOC Request No. 0520110649 (Dec. 20, 2011) (holding that the complainant stated a plausible sex stereotyping claim, when she alleged that she was subjected to a hostile work environment when a manager made derogatory comments about the complainant having relationships with women).

[39] 577 F. Supp. 2d 293 (D.D.C 2008).

[40] See also Glenn v. Brumby, , 663 F.3d 1312 (11th Cir. 2011), in which the Eleventh Circuit held that, “discrimination against a transgender individual because of her gender-nonconformity is sex discrimination, whether it’s described as being on the basis of sex or gender.” Id. at 1317.

[41] EEOC Appeal No. 0120120821 (April 20, 2012).

[42] U.S. Equal Employment Opportunity Commission EEOC Strategic Enforcement Plan FY 2013-2016, U.S. EQUAL EMPLOYMENT OPPORTUNITY EEOC, http://www.eeoc.gov/eeoc/plan/sep.cfm (last visited Dec. 2, 2012).

[43] Id.

[44] What You Should Know About EEOC and the Enforcement Protections for LGBTQ+ Workers, U.S. EQUAL EMPLOYMENT OPPORTUNITY EEOC (Nov. 20, 2014),

 http://www.eeoc.gov/eeoc/newsroom/wysk/enforcement_protections_LGBTQ+_workers.cfm.

[45] See EEOC Sues Lakeland Eye Clinic for Sex Discrimination Against Transgender Employee | U.S. Equal Employment Opportunity Commission; EEOC v. R.G. & G.R. Harris Funeral Homes ultimately was decided by the U.S. Supreme Court as part of the decision in Bostock.

[46] EEOC Appeal No. 0120133395 (April 1, 2015).

[47] EEOC Appeal No. 0120122376 (February 19, 2013), request for reconsideration denied, EEOC Request No. 0520130241 (January 10, 2014).

[48] EEOC Appeal No. 0120133123 (April 16, 2014).

[49] EEOC Appeal No. 0120133080 (July 15, 2015).

[50] EEOC v. Scott Medical Health Center, P.C. (W.D. Pa, No. 2:16-cv-00225-CB), the EEOC alleged that a gay male employee was subjected to harassment because of his sexual orientation and/or because he did not conform to the employer’s gender-based expectations, preferences, or stereotypes. The employee’s immediate supervisor knew that the employee was gay and repeatedly subjected him to anti-gay epithets and offensive comments about his sexuality and sex life. When the employee complained about the harassment, no corrective action was taken. Following two to three more weeks of the alleged harassment, the employee resigned to avoid being subjected to the offensive conduct.

[51] EEOC v. Pallet Companies d/b/a IFCO Systems NA, Inc. (“IFCO”) (D. Md., No. 1:16-cv-00595-RDB), the EEOC alleged that a lesbian employee was harassed by her supervisor because of her sexual orientation. Specifically, the EEOC asserted that a lesbian forklift operator had endured harassing comments from her night shift manager, such as “I want to turn you back into a woman,” “I want you to like men again,” and “Are you a man or a woman?”  Other allegations in the complaint include that the manager engaged in crude gestures and quoted biblical passages to her on the appropriateness of heterosexual relationships. Several days after complaining to management and raising a concern through the employee hotline, IFCO terminated the woman’s employment.  The EEOC alleged that the termination was retaliatory in nature.

[52] Bostock v. Clayton County, 590 U.S. ___ , 140 S.Ct. 1731 (2020).

[53] https://www.eeoc.gov/laws/guidance/protections-against-employment-discrimination-based-sexual-orientation-or-gender.

[54] https://www.eeoc.gov/sexual-orientation-and-gender-identity-sogi-discrimination

[55]In  Lusardi vs. McHugh, EEOC Appeal No. 0120133395 (April 1, 2015), the EEOC addressed the issue of sex-segregated  bathrooms, at https://www.eeoc.gov/sites/default/files/migrated_files/decisions/0120133395.tx

[56] Executive Order 13985, 86 Fed. Reg. 7009 (Jan. 20, 2021).

[57] Executive Order 13988, 86 Fed. Reg. 7023 (Jan. 20, 2021).

[58] Executive Order 14202, 86 Fed. Reg. 1379 (Mar. 8, 2021).

[59]  Executive Order 14035, 86 Fed. Reg. 123 (June 30, 2021).

[60]EEOC Appeal No. 0120160543 (Jan. 14, 2021).

[61] 590 U.S. ---, 140 S. Ct. 1731 (2020).

[62] EEOC Appeal No.  0120141298 (Feb. 9, 2021).

[63] EEOC Appeal No.  0120150799 (Feb. 16, 2021).

[64]  EEOC Appeal No. 2019005682 (Apr. 12, 2021).

[65] The State of the LGBTQ Community in 2020: A National Public Opinion Study, Mahowald, Gruberg, and Halpin (Oct. 6, 2020) available online at https://www.americanprogress.org/article/state-lgbtq-community-2020/

[66] A Message from EEOC Chair Charlotte A. Burrows for Pride Month and the Anniversary of the Supreme Court’s Decision in Bostock v. Clayton County, available on the EEOC’s website at: A Message from EEOC Chair Charlotte A. Burrows for Pride Month and the Anniversary of the Supreme Court’s Decision in Bostock v. Clayton County | U.S. Equal Employment Opportunity EEOC