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NYC Litigation Blog

Wednesday, September 21, 2016

Pushing the Boundaries of Title VII

Does federal law prohibit employment discrimination based on sexual orientation and gender identity?

Under Title VII of the Civil Rights Act of 1964, employers are prohibited from discriminating against employees and job applicants based on specific characteristics including race, color, national origin, religion and gender. Currently, as it has been interpreted by case law, Title VII does not protect workers from discrimination based on sexual orientation and gender identity. Moreover, legislation to end these forms of discrimination in the workplace stalled in Congress in 2013.

EEOC Initiative

Now, the federal government agency responsible for investigating employment discrimination claims has weighed in on the issue. The Equal Employment Opportunity Commission (EEOC) issued a bulletin in July stating that Title VII's prohibitions of sex discrimination includes employment discrimination based on gender identity and sexual orientation. The EEOC said that it intends to enforce these prohibitions in jurisdictions that permit, or do not prohibit, discrimination based on these characteristics.

For some time, the Commission's objective has been to protect lesbian, gay, bisexual, and transgender employees from discrimination and retaliation in the workplace. The bulletin is essentially the end product of the EEOC's 2012-2016 Strategic Enforcement Plan (SEP) which prioritized expanding protections against workplace discrimination to LGBT individuals.

That plan was also the basis for the agency's first ruling in 2012 that Title VII prohibited discrimination of a transgender job applicant. In its ruling the EEOC drew from a 1989 Supreme Court ruling that found workplace discrimination included "sex stereotyping." Moreover, since 2000, there have been a series of federal court rulings affirming that Title VII included employment discrimination based on sexual orientation and gender identity.

Why This Matters

For businesses with 15 or more employees, policies regarding employment discrimination need to be updated to reflect the EEOC's ruling. Further, those in supervisory roles as well as human resources should train and educate all employees to avoid employment discrimination based on sexual orientation and sexual orientation. If you have questions about how to update your policies to reflect the EEOC's ruling or believe you have been the target of workplace discrimination or harassment, you should engage the services of an experienced employment discrimination attorney.


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