EEOC issues guidance on sexual orientation, gender identity discrimination

The Equal Employment Opportunity Commission (EEOC) recently issued a technical assistance document for “Protections Against Employment Discrimination Based on Sexual Orientation or Gender Identity.” The document briefly explains the U.S. Supreme Court’s June 2020 decision in Bostock v. Clayton County, Georgia, and the agency’s established legal positions on sexual orientation and gender identity-related workplace discrimination issues.

Background on Bostock

In Bostock, the Supreme Court held that Title VII of the Civil Rights Act of 1964 (which prohibits discrimination because of “sex”) bars employers from discriminating based on an employee’s sexual orientation or gender identity. The ruling came through a set of three cases consolidated for oral argument.

All three cases turned on the same issue: whether the phrase “sex,” as used in Title VII, includes an individual’s sexual orientation or gender identity. The Court explained, “Discrimination based on homosexuality or transgender status necessarily entails discrimination based on sex; the first cannot happen without the second.” Here are some examples: