SOGI (Sexual Orientation and Gender Identity) Discrimination? The EEOC Offers Guidance

By Fiona W. Ong - Shawe Rosenthal LLP

June 16, 2021

Coining a new acronym (which we are not sure how to pronounce), the federal Equal Employment Opportunity Commission announced new resources regarding LGBTQ+ workplace rights on June 14, 2021 – the anniversary of the landmark Bostock v. Clayton County, Ga. decision in which the U.S. Supreme Court ruled that Title VII’s prohibition on “sex discrimination” in employment encompasses sexual orientation and transgender status.

The resources consist of a new SOGI landing page and a new technical assistance document (TAD) on Protections against Employment Discrimination Based on Sexual Orientation or Gender Identity. Of note, the EEOC asserts that it is not setting forth new policy through these resources; rather, they simply consolidate information and explain the EEOC’s “established positions” on these issues.

The SOGI Landing Page sets forth brief explanations of sexual orientation and transgender status discrimination, as recognized by the Supreme Court in Bostock. It addresses SOGI discrimination in the context of work situations, harassment, policies and procedures, and retaliation. It also provides a link to the relevant laws enforced by the EEOC, as well as information on what employees can do if they believe they have been subjected to discrimination.

The TAD provides more detailed information about this topic, beginning with a brief history of the EEOC’s recognition of SOGI discrimination in public sector cases leading up to the Bostock decision, in which, as the EEOC notes, “the Supreme Court held that Title VII makes it unlawful for a covered employer to take an employee’s sexual orientation or transgender status into account in making employment-related decisions.”

Which Employers are covered? The EEOC then moves on to explain that Title VII applies to employers with 15 or more employees, excepting tribal nations. It also permits certain religious institutions to limit hiring to those of a particular religion. Further, the EEOC notes that a “ministerial exception” bars certain employment discrimination claims by employees of religious institutions who perform vital religious duties at the core of the mission of the religious institution.

Which Employees are covered? Title VII protects applicants, current employees and former employees of those covered employers – regardless of full- or part-time schedule, seasonal or temporary status, and citizenship or immigration status. Additionally, SOGI discrimination applies to non-LGBTQ+ individuals

What Protections are provided? The EEOC states that Title VII provides protection against SOGI discrimination, even where state and local laws do not. The EEOC also asserts that Title VII prohibits discrimination with respect to a wide range of employment actions, including hiring, firing, furloughs, reductions in force, promotions, demotions, discipline, training, work assignments, compensation, overtime, fringe benefits, and “other terms, conditions, and privileges of employment.” We note, however, that the EEOC’s assertions in this regard are rather aggressive, as courts have generally found that such actions must be “materially adverse” – typically involving some direct or indirect economic impact – in order to support a discrimination claim and have found “minor” changes and actions (such as lack of training, discipline, negative performance evaluations, and undesirable work assignments) insufficient to meet that standard.

The EEOC also states that customer/client preference cannot justify SOGI discrimination. Furthermore, employers may not discriminate against employees based on their failure to conform to male/female stereotypes. And employers may not require employees to dress in accordance with their sex assigned at birth.

A perpetual challenge is the issue of bathrooms and locker rooms. The EEOC states that, while employers may choose to have separate, sex-segregated facilities of this sort, they must permit employees to use the facilities that correspond to their gender identity – including transgender men and women. Employers may also provide unisex or single-use facilities. Under the Obama administration, however, employers were not able to require transgender employees to use single-use facilities if the employee preferred to use the sex-segregated group facilities. The EEOC does not address that point here, and it is unclear how the Biden administration would handle this issue.

The EEOC further states the intentional and repeated use of the wrong name and pronouns for a transgender employee could support a claim of illegal harassment. An occasional accidental misuse would not rise to that level.

And finally, if an employee or applicant believes their rights have been violated, the EEOC explains that they can contact the agency – and reminds them of the 180-day deadline (300 days, if there is a state or local fair employment practices law) to file a charge. The EEOC provides links for more information from the EEOC for employees of private employers and for federal government employees, as well as information from the Office of Federal Contract Compliance Programs for employees of federal contractors. The EEOC further emphasizes that employees are protected from retaliation for opposing discrimination, making complaints, or participating in a discrimination investigation, hearing or other proceeding.