Guidance for New York Workers and Employers on Gender Identity Discrimination From the EEOC

The U.S. Supreme Court’s landmark ruling this summer in Bostock v. Clayton County, Georgia expanded Title VII’s protection against workplace discrimination to include discrimination based on sexual orientation, gender identity, and gender expression. Prior to the court’s ruling, legal protections against employment discrimination on these bases was highly inconsistent at the federal level, particularly with regard to gender identity and gender expression discrimination. New York State and New York City employment discrimination laws specifically mention these categories, but they do not appear in federal law in so many words. The Supreme Court found that Title VII’s prohibition against discrimination “on the basis of sex” necessarily includes gender identity and sexual orientation. The Equal Employment Opportunity Commission (EEOC) issued a new guidance document on “protections for LGBT workers” about two weeks after the court issued its decision. The document is rather concise, but the EEOC provides rather extensive background for the Bostock ruling elsewhere.

The Supreme Court arguably laid the foundation for the part of Bostock addressing gender identity and gender expression discrimination more than thirty years ago. Its 1989 ruling in Price Waterhouse v. Hopkins held that “sex stereotyping” constitutes sex discrimination under Title VII. The court found that the defendant employer denied the plaintiff a promotion in large part because of “her failure to conform to certain gender stereotypes.” It noted that one partner suggested that she “walk more femininely, talk more femininely, wear make-up, have her hair styled, and wear jewelry.”

In Oncale v. Sundowner Offshore Services, Inc., decided in 1998, the Supreme Court held that sexual harassment among members of the same sex may violate Title VII. Many of the plaintiff’s co-workers harassed him with homophobic slurs. The court ruled that the harassment need not be “motivated by sexual desire” to be actionable under Title VII. The ruling established the possibility of claims for discrimination based on someone’s perceived sexual orientation.

A 2012 decision by the EEOC held that discrimination on the basis of gender identity “is, by definition, discrimination ‘based on…sex’” within the meaning of Title VII. The decision had no direct effect on court rulings, but it shaped the agency’s policy on the issue for years.

In 2014, the EEOC filed suit in a Michigan federal court on behalf of a former funeral home director who alleged that her employer fired her because she was transgender. The Sixth Circuit Court of Appeals ruled that she could claim gender identity discrimination under Title VII. The case went to the Supreme Court, where it was consolidated with two cases alleging sexual orientation discrimination. The EEOC, under new management, filed a brief in August 2019 reversing its earlier position in the lawsuit.

The Supreme Court ruled by a 6-3 majority in Bostock that Title VII’s provisions regarding sex discrimination cover both sexual orientation and gender identity and expression. The funeral home allegedly discriminated against an employee who was assigned a male gender identity at birth, but who transitioned to a female identity. It would not have discriminated against someone assigned a female identity at birth who had a female identity. But for the employee’s assignment at birth as male, the discrimination would not have happened. Hence, the court ruled that this constituted sex discrimination.

The gender identity discrimination lawyers at Phillips & Associates advocate on behalf of employees and job applicants in New York City, helping them assert their rights under city, state, and federal law. Please contact us today online or at (212) 248-7431 to schedule a free and confidential consultation to see how we can assist you.

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