Title VII – Dickinson Law's Inside Entrepreneurship Law Blog

By: Adrianna Dunn

In observance of LGBTQ+ Pride Month and the anniversary of the Supreme Court’s landmark decision in Bostock v. Clayton County, the U.S. Equal Employment Opportunity Commission (EEOC) released new resources to help educate employees, applicants, and employers. One of the resources is a page on the EEOC website with information regarding sexual orientation and gender identity discrimination. The other resource is a new technical assistance document that aims to help the public understand what the Bostock decision means and the established EEOC positions on the laws it enforces. Below are some key takeaways from the technical assistance document.

What is Title VII and Who Does it Apply to?

The technical assistance document first gives a summary and explanation of the Bostock case. In this case, the Supreme Court recognized that discriminating against someone on the basis of sexual orientation or transgender status is discriminating against someone on the basis of sex, which is prohibited under Title VII of the Civil Rights Act of 1964. Title VII is a federal law that prohibits employers from discriminating as to any term, condition, or privilege of employment based on a person’s race, color, national origin, sex, and religion. Some specific areas where an employer cannot discriminate based on sexual orientation or gender identity are hiring, firing, furloughs, reductions in force, promotions, demotions, discipline, training, work assignments, pay, overtime, other compensation, and fringe benefits. Title VII applies to the federal government, employment agencies, labor organizations, and both the private and public sectors that have 15 or more employees. It applies regardless of citizenship or immigration status; however, it does not typically apply to independent contractors. Finally, because Title VII is a federal law, it applies nationwide regardless of state or local laws. Even if not required by law, it makes sense for all businesses to comply with Title VII.

What are some of the specific prohibitions regarding sexual orientation and gender identity?

The technical assistance document notes that because Title VII prohibits harassment and other forms of discrimination based on sexual orientation or gender identity, this includes those that are, for example, straight or cisgender.

The document further notes that an employer’s discriminatory action cannot be justified by customer or client preference. Discrimination is not allowed because customers or clients would rather work with those that have a different sexual orientation or gender identity. Also, employers cannot segregate employees because of actual or perceived customer preferences.

An employer cannot discriminate against an employee because that employee does not conform to society’s stereotypes about feminine or masculine behavior, whether or not the employer knows an employee’s sexual orientation or gender identity. This includes the way an employee decides to dress. An employer cannot require a transgender employee to dress in accordance with the sex the employee was assigned at birth. Also, using names or pronouns that are not in accordance with an individual’s gender identity can be considered harassment. The EEOC recognized that accidentally misusing a transgender employee’s preferred name and pronouns is not a violation of Title VII. However, intentional and repeated use of the wrong name and pronouns could contribute to an unlawful hostile work environment. For the conduct to be considered unlawful, it must be severe or pervasive when taking into consideration all other unwelcome conduct based on the employee’s gender identity, leading to a work environment that a reasonable person would consider intimidating, hostile, or offensive.

An employer may have separate, sex-segregated bathrooms, locker rooms, and showers for men and women. Of course, they can also choose to have unisex bathrooms, locker rooms, and showers. However, the EEOC takes the position that employers cannot deny an employee equal access to a bathroom, locker room, or shower that corresponds to the employee’s gender identity.

What can an individual do if their Title VII rights have been violated?

An applicant or employee in the private sector or state and local government can contact the EEOC for help in deciding what to do in these situations. If the individual decides that they want to file a charge of discrimination, the EEOC will investigate to decide if applicable Equal Employment Opportunity (EEO) laws have been violated. It is important to note that an individual must file within 180 days of the alleged violation, or 300 days if the employer is covered by a state or local employment discrimination law, in order to take further legal action. For more information on filing a charge, visit this site. To start the process of filing a charge of discrimination against a private company or a state or local government employer, visit the EEOC Online Public Portal or visit your local EEOC office.

Those in the federal government must contact the EEO Office at the federal agency they believe committed the unlawful employment discrimination. A federal applicant or employee has to request EEO counseling within 45 days of the incident. For more information on the federal sector process for alleging employment discrimination, visit the EEOC’s website.

Finally, an employer cannot retaliate against, harass, or otherwise punish an employee when the employee opposes employment discrimination that they reasonably believed was unlawful, when an employee files an EEOC charge or complaint, or when an employee participates in an investigation, hearing, or other proceeding connected to Title VII enforcement.

Adrianna Dunn, at the time of this post, is a rising third-year law student at Penn State Dickinson Law. She is from Wheeling, West Virginia, and is a graduate of West Virginia University. Adrianna is a Research and Teaching Assistant for Professor Prince.