Sexual Orientation and Gender Identity (SOGI) Discrimination

In Bostock v. Clayton County, Georgia, No. 17-1618 (S. Ct. June 15, 2020),[1] the Supreme Court held that firing individuals because of their sexual orientation or transgender status violates Title VII’s prohibition on discrimination because of sex.  The Court reached its holding by focusing on the plain text of Title VII.  As the Court explained, “discrimination based on homosexuality or transgender status necessarily entails discrimination based on sex; the first cannot happen without the second.”  For example, if an employer fires an employee because she is a woman who is married to a woman, but would not do the same to a man married to a woman, the employer is taking an action because of the employee’s sex because the action would not have taken place but for the employee being a woman.  Similarly, if an employer fires an employee because that person was identified as male at birth but uses feminine pronouns and identifies as a female, the employer is taking action against the individual because of sex since the action would not have been taken but for the fact the employee was originally identified as male.  

The Court also noted that its decision did not address various religious liberty issues, such as the First Amendment, Religious Freedom Restoration Act, and exemptions Title VII provides for religious employers.                                            

SOGI Discrimination & Work Situations

The law forbids sexual orientation and gender identity discrimination when it comes to any aspect of employment, including hiring, firing, pay, job assignments, promotions, layoff, training, fringe benefits, and any other term or condition of employment.

SOGI Discrimination & Harassment

It is unlawful to subject an employee to workplace harassment that creates a hostile work environment based on sexual orientation or gender identity.  Harassment can include, for example, offensive or derogatory remarks about sexual orientation (e.g., being gay or straight).  Harassment can also include, for example, offensive or derogatory remarks about a person's transgender status or gender transition.

Although accidental misuse of a transgender employee’s name and pronouns does not violate Title VII, intentionally and repeatedly using the wrong name and pronouns to refer to a transgender employee could contribute to an unlawful hostile work environment.

While the law doesn't prohibit simple teasing, offhand comments, or isolated incidents that aren't very serious, harassment is unlawful when it is so frequent or severe that it creates a hostile work environment or when it results in an adverse employment decision (such as the victim being fired or demoted).

The harasser can be the victim's supervisor, a supervisor in another area, a co-worker, or someone who is not an employee of the employer, such as a clientor customer.

SOGI Discrimination & Employment Policies/Practices

As a general matter, an employer covered by Title VII is not allowed to fire, refuse to hire, 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. Employers also are not allowed to segregate employees based on actual or perceived customer preferences. (For example, it would be discriminatory to keep LGBTQ+ employees out of public-facing positions, or to direct these employees toward certain stores or geographic areas.)

Prohibiting a transgender person from dressing or presenting consistent with that person’s gender identity would constitute sex discrimination.

Courts have long recognized that employers may have separate bathrooms, locker rooms, and showers for men and women, or may choose to have unisex or single-use bathrooms, locker rooms, and showers. The Commission has taken the position that employers may not deny an employee equal access to a bathroom, locker room, or shower that corresponds to the employee’s gender identity. In other words, 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.

SOGI Discrimination & Retaliation

It is illegal for an employer to retaliate against, harass, or otherwise punish any employee for:

• opposing employment discrimination that the employee reasonably believed was unlawful;
• filing an EEOC charge or complaint;
• or participating in any investigation, hearing, or other proceeding connected to Title VII enforcement.

Retaliation is anything that would be reasonably likely to discourage workers from protesting discrimination.

Laws the Commission Enforces

• 42 U.S.C. § 2000e-2 (Section 703)
  
  This is the section of the law that was at issue in Bostock and applies to the private sector, state and local governments, employment agencies, and labor organizations.  Bostock made clear that section 703’s prohibition of discrimination based on sex includes sexual orientation and transgender status.
• 42 U.S.C. § 2000e-16 (Section 717)
  
  Section 717 covers employees of the federal government.  The Commission has applied Bostock in federal sector decisions under section 717. (See https://www.eeoc.gov/federal-sector/reports/federal-sector-cases-involving-transgender-individuals.)

What to Do if You Think You Have Been Discriminated Against

If you believe you have been discriminated against, you may take action to protect your rights under Title VII by filing a complaint:

• Private sector and state/local government employees may file a charge of discrimination by contacting the EEOC at 1-800-669-4000 or going to https://www.eeoc.gov/how-file-charge-employment-discrimination.
• Federal government employees may initiate the complaint process by contacting an EEO counselor at your agency; more information is available at https://www.eeoc.gov/federal-sector/overview-federal-sector-eeo-complaint-process.

Other Laws

Other laws that also may apply:

• Federal contractors and sub-contractors are covered by a separate, explicit prohibition on transgender or sexual orientation discrimination in employment pursuant to Executive Order (E.O.) 13672 enforced by the U.S. Department of Labor’s Office of Federal Contract Compliance Programs.
• State or local fair employment laws also may prohibit discrimination based on sexual orientation or transgender status.  Contact information for state and local fair employment agencies can be found on the page for EEOC’s field office covering that state or locality.

[1] This also served as the decision for Altitude Express, Inc., et al. v. Zarda et al. (No. 17–1623) and R. G. & G. R. Harris Funeral Homes, Inc. v. EEOC et al. (No. 18–107).