Kilies and Simonton: Employee protections after Bostock

Under federal and state law, Indiana employees are protected from unlawful discrimination, including discrimination because of sex. Employers likely remember Bostock v. Clayton County, the landmark decision where the Supreme Court of the United States extended Title VII’s “because of sex” protections to sexual orientation and transgender status. In that case, the Supreme Court made clear that it is unlawful under Title VII of the Civil Rights Act for employers to terminate employees for being gay or transgender but left open the following questions:

• Whether the decision “sweep[s] beyond Title VII” to other federal or state laws that prohibit sex discrimination.

• Whether the ministerial exception or the Religious Freedom Restoration Act exempt religious organizations and religious educational institutions from the holding.

• Whether other policies and practices qualify as unlawful discrimination, including sex-segregated bathrooms, locker rooms and dress codes.

Because of these open questions, employers may not clearly appreciate the ways in which their policies and practices can invite legal exposure.

On June 15, 2021 — the first anniversary of Bostock — the Equal Employment Opportunity Commission issued guidance entitled, “Protections Against Employee Discrimination Based on Sexual Orientation or Gender Identity,” which explains the Bostock decision and the EEOC’s broad interpretation of sex discrimination with respect to sexual orientation and gender identity. Though it has no legal force or effect, this guidance reflects long-held EEOC positions on issues like sex-segregated bathrooms, gender pronouns and dress codes. Employers should understand this guidance to avoid employee claims and enforcement actions.

Single-sex bathrooms

Five years before Bostock, the EEOC took the position that employers may not deny an employee equal access to a bathroom, locker room or shower that corresponds to the employee’s gender identity. In Lusardi v. Dep’t of the Army, which was decided in 2015, the EEOC found the Army discriminated against a transgender female when it denied her access to a bathroom corresponding to her gender identity. The June 2021 guidance is consistent with Lusardi and makes clear that private sector employers with separate bathrooms, locker rooms and showers for men and women must allow all men, including transgender men, to use facilities designated for men, and must allow all women, including transgender women, to use facilities designated for women.

Gender pronouns

The June 2021 guidance also provides that harassment can occur when an employer or co-worker intentionally uses pronouns or names inconsistent with an employee’s gender identity. To be unlawful, the conduct must be so severe or pervasive that a reasonable person would consider the work environment intimidating, hostile or offensive. In Lusardi, the EEOC explained that, while accidental misuse of a preferred name and pronoun does not violate Title VII, intentional and repeated misuse can rise to the level of a hostile work environment.

Appearance and dress code

An employer may not discriminate against an employee who does not conform to traditional sex-based stereotypes about the way men or women are expected to appear. This means an employee may not be prevented from dressing consistently with his or her gender identity, whether he is a man appearing in a stereotypically feminine way or a woman appearing in a stereotypically masculine way.

While recognizing some employees, customers and clients might prefer to work with people of a certain sexual orientation or gender identity, the June 15, 2021, guidance expressly prohibits employers from withholding assignments or segregating employees based on any such preferences. It is discriminatory to keep LGBTQ employees out of public-facing positions, certain stores or geographic areas.

Though the federal courts may ultimately reject these EEOC positions, the EEOC remains responsible for investigating claims made under Title VII and enforcing the act. Thus, until caselaw says otherwise, employers who fail to heed the EEOC guidance may find themselves defending charges of discrimination or facing costly investigation for alleged violations of the act.•

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Janelle P. Kilies is a partner and Anthony J. Simonton is an associate at Lewis Wagner LLP. Opinions expressed are those of the authors.

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