“Because of . . . Sex:” The Ongoing Dispute Over The Employment Rights of LGBTQ+ Workers Following Bostock v. Clayton County

On June 15, 2020, the United States Supreme Court held in Bostock v. Clayton County, 590 U.S. ___ (2020), that Title VII of the 1964 Civil Rights Act, which bars employment discrimination “because of [an employee’s] race, color, religion, sex, or national origin,” includes discrimination based on sexual orientation and gender identity. 

Significantly, in a 6-3 decision, the Bostock Court ruled that, when an employer discriminates against an individual due to their sexual orientation or transgender status, it necessarily does so “because of . . . sex.”  More particularly, the Court opined that, “An employer who fires an individual for being homosexual or transgender fires that person for traits or actions it would not have questioned in members of a different sex.  Sex plays a necessary and undisguisable role in that decision, exactly what Title VII forbids.”  However, the Court noted that it was not taking a position concerning the use of “private spaces.”

In turn, on June 15, 2021, the one year anniversary of Bostock, the Equal Employment Opportunity Commission (EEOC) issued guidelines relating to potential unlawful discrimination of LGBTQ+ employees under Title VII[1].  In “Protections Against Employment Discrimination Based on Sexual Orientation or Gender Identity,” the EEOC outlined that employers may not engage in the following due to orientation or identity:

• Discriminate as to the terms, conditions, or privileges of employment, such as hiring and firing, promotions and demotions, discipline, training, and pay;
• Create or tolerate harassment, including by customers or clients, such as repeatedly using the wrong name and pronouns;
• Use customer preference to refuse to hire, fire, or assign work;
• Discriminate because an employee does not confirm to a sex-based stereotype regarding his or her behavior, whether or not the employer has knowledge of the employee’s identity or orientation;
• Require an employee to dress in a manner or use a restroom in accordance with his or her assigned sex at birth (although employers may have separate or unisex bathrooms, locker rooms, and/or showers);
• Retaliate against an employee for opposing employment discrimination that the employee believes to be unlawful, filing an EEOC complaint, or participating in any investigation or proceeding connected with Title VII enforcement; or
• Create or tolerate harassment against straight or cisgender individuals.

In response, in August 2021, attorneys general from twenty states brought a lawsuit in the United States District Court for the Eastern District of Tennessee, seeking to prevent the federal government from implementing the aforementioned directives.  In that pending matter, captioned as The State of Tennessee v. EEOC, Docket No.: 3:21-cv-00308, the attorneys general represent that Bostock is limited solely to employer termination because a worker is homosexual or transgender, as the Supreme Court declined to consider whether any other conduct would constitute actionable discrimination under Title VII.  Accordingly, the EEOC is allegedly exceeding its authority by “purport[ing] to resolve highly controversial and localized issues” and “sensitive questions . . . by executive fiat without providing any opportunity for public participation.”  In addition, the attorneys general contend that they are attempting to stop the EEOC from “usurping authority that properly belongs to Congress, the States, and the people and . . . eliminate the nationwide confusion and upheaval that the [EEOC’s] recent guidance has inflicted on States and other regulated entities.” 

As such, the attorneys general request declaratory and injunctive relief so that:  (1) employers can “maintain[] showers, locker rooms, bathrooms, . . . and other living facilities separated by biological sex or . . . regulat[e] each individual’s access to those facilities based on the individual’s biological sex,” (2) workers have the ability to decline use of an employee’s preferred pronouns, and (3) workplaces can enact “dress codes based on biological sex or . . . requir[e] an individual to comply with the dress code that corresponds to the individual’s biological sex.”

Likewise, in October 2021, two separate actions were commenced by Christian groups, arguing that the EEOC interpretation and enforcement of Title VII violates the First Amendment and Religious Freedom Restoration Act (RFRA).  Notably, in U.S. Pastor Council v. EEOC, Docket No.: 4:18-cv-000824-O, both non-profit and for-profit Christian organizations filed a class action lawsuit in the District Court for the Northern District of Texas because the EEOC guidance “fails to make any exemptions or accommodations for churches or corporations that oppose homosexual or transgender behavior on religious grounds” and “requires a church to hire practicing homosexuals for ministerial or non-ministerial positions, or . . . requires churches to recognize same-sex marriage or provide spousal benefits to same-sex partners of church employees,” thereby “lend[ing] approval” and “becom[ing] complicit in . . . gross sin.”

Similarly, in Christian Employers Alliance v. EEOC, Docket No.: 1:21-cv-00195-DMT-CRH, venued in the District Court for the District of North Dakota, the plaintiff Christian organization claims that the EEOC “has for many years now misinterpreted and improperly enforced discrimination based on sex . . . so as to force religious non-profit and for-profit employees to pay for and provide health plans or health insurance coverage to their employees that cover gender transition surgeries, procedures, counseling, and treatments in violation of the employers’ religious beliefs . . . .”  Therefore, the EEOC mandate “contradicts their beliefs that God purposefully created humans as either a biological male or female and that a person’s biological sex is immutable,” since the group members “believe and teach that gender transition and reassignment . . . are wrong . . . .”

Consequently, the disposition of the above cases could have a dramatic effect on employment for the LGBTQ+ community, as:  (1) 46% of LGBTQ+ workers advise that they have experienced unfair treatment at work at some point, (2) 11% of LGBTQ+ people of color report being fired or not hired because of their identity in the last year, (3) 57% of LGBTQ+ employees assert that unfair treatment against them was motivated by religious beliefs, (4) 38% of LGBTQ+ individuals state that they were harassed at work, (5) 26% of LGBTQ+ workers indicate that they are not out to any coworkers, and (6) 34% of LGBTQ+ employees have left a job as a result of how they were treated by an employer, according to a May 2021 survey conducted by the Williams Institute at UCLA School of Law[2].

[1] For Title VII to apply, employers must have fifteen or more workers, including part-time and temporary employees, for at least twenty weeks in the previous or current calendar year.

[2] “LGBT People’s Experiences of Workplace Discrimination and Harassment,” https://williamsinstitute.law.ucla.edu/publications/lgbt-workplace-discrimination/