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EEOC Issues New Guidance on Sexual Orientation and Gender Identity Discrimination Under Title VII

Title VII of the Civil Rights Act of 1964 prohibits discrimination by employers on the basis of sex and other factors. Compared to New Jersey employment discrimination law (the New Jersey Law Against Discrimination), Title VII’s list of protected categories seems short. Federal court decisions have expanded the scope of the statute beyond the narrowest literal meaning of its words, to include categories or actions mentioned more specifically in other laws. Most recently, a 2020 decision by the U.S. Supreme Court held that Title VII’s prohibition on sex discrimination includes discrimination on the basis of sexual orientation and gender identity. In June 2021, the Equal Employment Opportunity Commission (EEOC) released guidance clarifying its interpretation of Title VII in light of the court’s ruling.

Federal law does not provide a specific definition of “sex” in the context of employment discrimination. The Supreme Court has built on the statute’s rather sparse language in several important rulings. In 1986, for example, the court ruled in Meritor Savings Bank v. Vinson that sexual harassment constitutes sex discrimination in violation of Title VII. That case involved sexual harassment of a female employee by a male supervisor. The court ruled in Oncale v. Sundowner Offshore Services in 1998 that sexual harassment of a man by male employees may also violate Title VII.

The Supreme Court’s 1989 decision in Price Waterhouse v. Hopkins expanded the understanding of sex discrimination by holding that Title VII bars discrimination on the basis of “sex stereotyping.” The plaintiff in that case claimed that the defendant discriminated against her because she did not conform to expectations of how she should dress and behave as a woman. This decision did not lead directly to last summer’s ruling in Bostock v. Clayton County, but it set an important precedent.

The Bostock case involved three consolidated cases. The plaintiffs in two of the cases alleged that their employers fired them because of their sexual orientation. The plaintiff in the third case was a transgender woman who alleged that she was fired after she came out to her employer and began the process of transitioning.

The Supreme Court found for the plaintiffs in a 6-3 ruling. In its opinion, the majority stated that firing someone for their gender identity or sexual orientation is a form of sex discrimination, because it involves characteristics that would not lead to the same outcome for someone of a different sex. For example, an employer who fired a man because he is attracted to men would not fire a woman because she is attracted to men.

About a year after the Bostock ruling, the EEOC issued guidance on sexual orientation and gender identity discrimination. It describes Bostock and delves into some practical questions. It states that an employer may not justify discriminatory actions by citing “customer or client preferences.” Employers may not require transgender employees “to dress in accordance with [their] sex assigned at birth.” The guidance also notes that “intentionally and repeatedly using the wrong name and pronouns” could support a hostile work environment claim by a transgender employee.

If you are involved in a dispute with an employer in New Jersey or New York, the employment attorneys at the Resnick Law Group are available to answer your questions and discuss your rights and options. Please contact us online, at 973-781-1204, or at 646-867-7997 today to schedule a confidential consultation to see how we can help you.

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