They grow up so fast! The Supreme Court’s Bostock v. Clayton decision just turned one, and that means decorations, a smash cake, and presents. The EEOC showed up to the party with the perfect gift… guidance explaining the impact of the Bostock ruling on businesses and employees!
On June 15th, 2020, the Supreme Court ruled that protections under Title VII of the Civil Rights Act of 1964 extend to sexual orientation and gender identity discrimination. One year later, the EEOC released guidance explaining the impact of the ruling; including a brief fact sheet and a list of notable EEOC litigation and Federal sector cases.
As a reminder, Title VII applies to businesses with 15 or more employees as well as local, state and federal employers. It protects job applicants, previous employees and current employees. Title VII covers all states, regardless of current protections at the state level.
In regards to Title VII within the context of the Bostock ruling, the EEOC guidance clarifies that:
- Employers may not take adverse action against employees for their sexual orientation, gender identity or for not conforming to sex-based stereotypes
- Protections extend to non-LGBTQ employees in addition to LGBTQ employees
- Customer/client preference cannot be used as a justification for LGBTQ discrimination
- Employers may provide sex-separated bathrooms; however, employees must be allowed to use the bathroom corresponding with their gender identity
- Intentional and repeated misuse of an employee’s pronouns may constitute unlawful harassment
Like any child’s birthday party, the EEOC guidance release was not without a bit of drama. The commission’s Republican majority have criticized the guidance for both:
- Being released unilaterally by the Democratic EEOC Chair, without a vote from the commission panel
- Containing guidance on topics that the Supreme Court did not address in its decision (the bathroom issue in particular)
StraightforWARD Legal Advice:
Regardless of the EEOC tug-of-war, its best for employers to reevaluate their workplace policies and hiring/firing procedures to ensure they are in compliance with the new guidance. Additionally, employers should be prepared for current/future employees to come out or transition during their time of employment. For help with reviewing and updating your company’s employee handbook, contact Jennifer Ward at 215-647-6601 or firstname.lastname@example.org.