It’s been slightly over one year since the U.S. Supreme Court issued a long-awaited ruling that any employment decision based, at least in part, on a person’s sexual orientation or gender identity constitutes unlawful discrimination under Title VII of the Civil Rights Act of 1964 (Bostock v. Clayton County, Georgia, 140 S.Ct. 1731 (June 15, 2020)). This month, the U.S. Equal Employment Opportunity Commission (EEOC) has published related resources for employers, including a webpage with a broad overview of sexual orientation and gender identity discrimination, as well as several fact sheets.
Since 2018, the EEOC has received over 1,800 LGBTQ+-based sex discrimination charges each fiscal year, resulting in annual monetary benefits between $6 million and $7 million. EEOC litigators have filed lawsuits and amicus curiae briefs (persuasive legal documents) in various courts addressing a multitude of issues related to workplace discrimination based on sexual orientation and gender identity.
From the EEOC’s webpage, employers can find a technical assistance document detailing protections against employment discrimination based on sexual orientation or gender identity, the EEOC’s FAQs on Sex Discrimination, a fact sheet on facility/bathroom access and gender identity, and a fact sheet on notable EEOC litigation regarding Title VII and discrimination based on sexual orientation and gender identity.
Remember that in California, the Fair Employment and Housing Act (FEHA) already explicitly protects an individual from discriminatory employment decisions based upon their sexual orientation, gender identity and gender expression as protected classes. Additionally, employers covered by the mandatory supervisor harassment prevention training requirement must ensure that any course they use includes a discussion of harassment based on gender identity, gender expression and sexual orientation.
Employers with employees only covered by Title VII should consult with legal counsel to determine how the Bostock decision may impact their policies and procedures.
Katie Culliton, Editor, CalChamber