Last year, the United States Supreme Court decided Bostock v. Clayton Cty., Georgia, 140 S. Ct. 1731 (2020) and held that it is unlawful under Title VII to discriminate against an employee because of their gender identity or sexual orientation. Since then, employers have been left with little guidance regarding how far the decision reaches. Earlier this year, the Equal Opportunity Employment Commission (“EEOC”) issued guidance clarifying the implications following Bostock. The EEOC Guidance is not binding, however, it shows the EEOC’s interpretation and how the EEOC intends to enforce discrimination laws going forward.

According to the Guidance, non-LGBT+ individuals are also protected from discrimination based on gender identity and sexual orientation, and these protections are against both discrimination and harassment. The Guidance also notes that employers cannot avoid these protections based on client or customer preferences, and employers may not discriminate against an employee for failing to conform to sex-based stereotypes. The EEOC also goes further and explains employers may not prohibit employees from dressing or presenting consistent with their gender identity, or using the bathroom or locker room of the employee’s gender identity.  The EEOC also states that referring to an employee by pronouns inconsistent with the employee’s gender identity may constitute harassment.

This Guidance illustrates the EEOC evaluation of impermissible actions under Title VII following Bostock. The Biden administration has also shown to be focused on enforcing protections for individuals with regard to gender identity and sexual orientation. However, lawsuits have been filed by Tennessee and Texas challenging the EEOC Guidance. These legal challenges allege the Guidance misstates the law and interprets Bostock too broadly. Once these suits make their way through the Courts, we will have a better understanding of Bostock’s impact. In the meantime, the EEOC Guidance is informative, and employers should be advised to proceed with caution in this new area.