For Pride 2023, the U.S. Equal Employment Opportunity Commission (“EEOC”) reminds employers that three years ago, the Supreme Court of the United States (“SCOTUS”) held that Title VII of the Civil Rights Act of 1964 prohibits discrimination based on sexual orientation or gender identity because both are forms of sex discrimination.

That landmark decision, Bostock v. Clayton County, explained:

An employer violates Title VII when it intentionally fires an individual employee based in part on sex. … Title VII’s message is “simple but momentous”: An individual employee’s sex is “not relevant to the selection, evaluation, or compensation of employees.” …

The statute’s message for our cases is equally simple and momentous: An individual’s homosexuality or transgender status is not relevant to employment decisions. That’s because it is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex.

(bold supplied). I wrote about this landmark decision here.

(Image by Boris Štromar from Pixabay)

Now, in 2023, the EEOC cautions employers to remember Bostock.

It expressed commitment to remedying unlawful workplace discrimination against LGBTQI+ workers in any aspect of employment.

The EEOC Is Doing More Than Issuing Messages.

In fact, the EEOC has been busy filing lawsuits and effectuating settlements on behalf of LGBTQI+ workers.

The EEOC message noted that the agency recovered approximately $8.7 million during fiscal year 2022 in cases involving an allegation of sexual orientation or gender identity discrimination. 

In 2023, already, the EEOC has filed four lawsuits on behalf of gay and transgender employees. You can read EEOC Chair Charlotte Burrows’ message about these cases here.

In one case, the EEOC brought a class action on behalf of a group of female employees who were subjected to harassment based on their sex and sexual orientation, including the company owner calling them “f*ckin’ lesbians” and saying “women like you would be killed in my country.”

In another, the EEOC alleges that multiple employees endured multiple forms of harassment, including a Black gay man who was the target of racist and homophobic insults, including “the ‘n’ word” and “the ‘f’ word.’”

Now, I have not read the complaints in these cases, and, of course, they are only allegations at this point.

The Law Prohibits These Types of Comments.

If true, these employers may find themselves in trouble.

As I talked about years ago in Sexual Harassment 101, to constitute a hostile work environment, first, such comments or conduct must be based on a protected characteristic, such as gender—the harassment must be because of the employee’s sex (or race, disability, age, etc). Do we have that here? According to Bostock, conduct based on a person’s gender identity or sexual orientation is based on “sex.”

Second, the comments must be severe or pervasive enough to create a work environment that a reasonable person would consider intimidating, hostile, offensive, or abusive. Do we have that here?

Maybe. The courts will decide.

Finally, the sexually charged comments or conduct must be severe or pervasive to the point that the employee (subjectively) considers it to be offensive and abusive.

Employer Takeaways

Employers, take note – LGBTQI+-based discrimination violates Title VII, and the EEOC is watching. Ensure your employees, customers, and clients feel safe and that they can report to management in the event that they are subjected to any such comments.

After the Human Rights Campaign declared a state of emergency on behalf of the LGBTQI+ community last week, we are likely to see an increased number of EEOC-filed suits on behalf of individuals alleging discrimination based on sexual orientation or transgender status.

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