One year ago, on June 15, 2020, the U.S. Supreme Court handed down a landmark decision in Bostock v. Clayton Country, 590 U.S. __, 140 S. Ct. 1731 (2020). The Court's decision interpreted Title VII of the Civil Rights Act of 1964's prohibition on discrimination “because of sex” to include discrimination on the basis of sexual orientation or gender identity (what the EEOC refers to collectively as “SOGI”); thereby effectively creating new protected classes for the purposes of federal employment discrimination law.
Such a seismic shift in federal civil rights law understandably created a good deal of confusion for employers who wish to comply with the Court's interpretation of Title VII, but are not sure precisely what they are and are not permitted to do. On the first anniversary of the Bostock decision, the EEOC has finally released some limited guidance on what the decision means, in practical terms, for employers:
• Employers may not discriminate on the basis of an employee's SOGI protected class(es) with respect to any terms or conditions of the employee's employment, including but not limited to hiring, firing, job assignment, promotions, layoffs, training, and fringe benefits.
• Employers may also be liable for hostile work environment if their workplaces are permeated with severe and pervasive hostility towards an employee's SOGI protected class(es). Offensive or derogatory remarks about a person's sexual orientation and offensive or derogatory remarks about an employee's transgender status or gender transition can create a hostile work environment.
• The EEOC advises that accidentally referring to an employee in a SOGI protected class(es) by the wrong name or pronouns does not violate Title VII; however, repeated behavior of this sort can contribute to a hostile work environment.
• The EEOC guidance states that a customer preference for interacting with employees who do or do not belong to a certain SOGI class (e.g. preferring cisgender employees over transgender employees for frontline customer interactions) is unlawful discrimination, regardless of whether an employer believes that business exigencies demand this sort of preference.
•Preventing or disciplining a transgender person for dressing in a manner that corresponds to their gender identity is unlawful discrimination.
• Bathrooms, locker rooms, and other traditionally gender-segregated private spaces may still be segregated by gender, however the male facilities must be open to all persons who identify as male, including transgender men, and vice versa for women. Alternatively, employers may have single-occupancy non-gender-specific restrooms, or unisex facilities. However, if an employer does have gender-specific facilities, all employees who identify with that gender must be allowed equal access to the facilities designated for that gender.
Obviously, this guidance is far from complete or comprehensive, and employers will still likely have many questions about how to comply with Title VII after Bostock. If employers are in doubt about what they may or may not lawfully do with respect to SOGI protected classes, we strongly advise consulting with experienced employment counsel.