EEOC Guidance on Protections Against Employment Discrimination Based on Sexual Orientation or Gender Identity

On June 15, 2021, the Equal Employment Opportunity Commission (EEOC) issued guidance explaining its views on the U.S. Supreme Court’s decision in Bostock v. Clayton Cnty., 140 S. Ct. 1731 (2020), and clarifying employers’ legal obligations with respect to LGBTQ+ workers. In the landmark Bostock decision, the Supreme Court held that the prohibition against sex discrimination under Title VII of the Civil Rights Act of 1964 (Title VII) includes employment discrimination against an individual on the basis of sexual orientation or transgender status. Specifically, the new guidance from the EEOC (EEOC Guidance) explains that an employer may not discriminate against an employee on the basis of gender identity by prohibiting an employee from dressing consistent with the employee’s gender identity; by denying an employee equal access to a bathroom consistent with that employee’s gender identity; or by refusing to use pronouns or names consistent with the employee’s gender identity. With many employers returning to the office over the next several weeks, New York employers should consider how to implement the EEOC Guidance, as well as similar state and city laws.

The ‘Bostock’ Decision

Bostock consolidated and addressed three separate cases. In each case, an employer terminated an employee for being gay or transgender: Clayton County in Georgia fired Gerald Bostock, a child welfare advocate, shortly after Mr. Bostock began participating in a gay softball league; Altitude Express in New York fired Donald Zarda, a skydiving instructor, days after Mr. Zarda mentioned that he was gay; and R.G. & G.R. Harris Funeral Homes Michigan fired Aimee Stephens after she told her employer that she planned to live and work as a woman after initially presenting as a male. In Mr. Bostock’s case, the Eleventh Circuit held that Mr. Bostock failed to state a claim because Title VII does not prohibit terminating an employee due to the employee’s homosexuality. By contrast, the Second Circuit held that Mr. Zarda’s case could proceed because Title VII prohibits discrimination based on sexual orientation. The Sixth Circuit reached a similar decision as the Second Circuit in Ms. Stephens’s case, holding that Title VII bars employers from firing employees because of transgender status.