New Sexual Orientation and Gender Identity Protection Guidance Released

The Equal Employment Opportunity Commission (EEOC) recently issued sexual orientation and gender identity protection guidance. Published on June 15th, 2021, the fact sheet’s release coincides with the Supreme Court’s decision in Bostock v. Clayton County. In brief, the Supreme Court settled Bostock on June 15th, 2020, prohibiting LGBTQ+- sex discrimination under Title VII.

Contents of the Fact Sheet

Overall, the sexual orientation and gender identity protection guidance explains what the Bostock decision meant for all workers. Additionally, It also describes the EEOC’s legal positions on LGBTQ+-related matters. Before Bostock, the EEOC decided on various matters involving employment discrimination based on sexual orientation and gender identity. For example, the EEOC has authority under Title VII to decide employment discrimination appeals by employees of the federal government.  As a result, in 2012, the EEOC agreed that discrimination against a federal applicant based on gender identity is sex discrimination. Furthermore, in 2015, the Commission decided that sexual orientation discrimination is also sex discrimination under Title VII. Recently, the Commission also applied the Bostock decision to the federal sector. Most important, the EEOC states that this fact sheet is not a new policy. Thus, it is intended only to provide clarity to the public regarding existing requirements under the law. In general, the fact sheet includes the following information:

• An explanation of the Bostock case
• Worker protections under Title VII
• Appropriate Title VII applications
• Discrimination under Title VII
• Reporting Title VII violations

Employer Takeaways

In conclusion, the sexual orientation and gender identity protection guidance may signal sex discrimination prevention as a key EEOC priority. In either case, sex discrimination prevention under Title VII does impact most employers. Additionally, while Title VII applies federally to employers with 15 or more employees, some states have specific sex discrimination laws. Some of these state laws could apply to small employers with as few as one employee. Accordingly, employers need to investigate which, if any, state-specific anti-discrimination laws they need to follow.