Protections Against Employment Discrimination Based on Sexual Orientation or Gender Identity

On June 15, 2020, the Supreme Court of the United States issued a landmark ruling in Bostock v. Clayton County, affirming that Title VII of the Civil Rights Act of 1964 prohibits employment discrimination based on sexual orientation or transgender status. This decision clarified that workplace discrimination against LGBTQ+ individuals falls under the existing legal protections against sex-based discrimination.

This fact sheet outlines the significance of the Bostock decision for LGBTQ+ employees, all covered workers, and employers nationwide. It also highlights the Equal Employment Opportunity Commission’s (EEOC) legal stance on LGBTQ+-related workplace protections.

Before Bostock, the EEOC had already ruled on cases involving discrimination based on sexual orientation and gender identity:

• 2012 – The EEOC determined that refusing to hire a federal applicant due to gender identity is sex discrimination under Title VII.
• 2015 – The Commission ruled that discrimination based on sexual orientation is a form of sex discrimination in the federal sector.
• Post-Bostock – The EEOC has continued applying the Supreme Court’s ruling in federal employment cases.

This publication does not introduce new policies. It only clarifies existing legal protections under Title VII and does not create binding legal obligations.

1. What Was the Bostock Case About?

The Bostock ruling combined three cases involving LGBTQ+ employees who were dismissed after their employers learned of their sexual orientation or gender identity:

• Gerald Bostock – A child welfare services coordinator was fired after his employer discovered he had joined a gay softball league.
• Donald Zarda – A skydiving instructor was dismissed after revealing he was gay.
• Aimee Stephens – A funeral director was fired after informing her employer of her transition from male to female.

In its decision, the Supreme Court ruled that employment discrimination based on sexual orientation or transgender status inherently constitutes sex discrimination under Title VII. The ruling prohibits employers from considering an individual’s LGBTQ+ status in hiring, firing, or other employment-related decisions. However, the Court acknowledged that specific legal questions related to this ruling may need to be resolved in future cases.

2. Who Does Title VII Protect?

Title VII safeguards job applicants, current employees, including full-time, part-time, seasonal, and temporary workers, and former employees, as long as their employer has 15 or more employees. Employers with fewer than 15 total employees are not covered under Title VII.

This federal law applies to employees regardless of citizenship or immigration status and is enforced in all U.S. states, the District of Columbia, and U.S. territories.

However, independent contractors are generally not covered by Title VII. Determining whether an individual qualifies as an employee or an independent contractor requires a case-specific analysis. For further clarification, refer to the EEOC’s guidance on Threshold Issues.

3. Which Employers Are Covered Under Title VII?

Title VII applies to:

• Private-sector employers with 15 or more employees
• State and local government employers with 15 or more employees
• Federal government agencies
• Unions and employment agencies

Title VII does not apply to Tribal nations. However, private employers with 15 or more employees are covered under the law, even if they operate on a Tribal reservation.

Additionally, religious organizations and educational institutions may hire individuals who share their religious beliefs. Courts also recognize a ministerial exception, which prevents specific employment discrimination claims against religious institutions when employees perform key religious duties. Both courts and the EEOC evaluate religious defenses to discrimination claims on a case-by-case basis. To learn more about these exemptions, visit the EEOC Compliance Manual, Section 12: Religious Discrimination.

Other defenses may also be available to employers, depending on the specific circumstances of a case.

4. Does Title VII Apply in States Without LGBTQ+ Protections?

Yes. Title VII is a federal law and applies nationwide. Employees are protected from discrimination based on sexual orientation or gender identity, regardless of whether state or local laws provide similar protections.

5. What Employment Practices Are Prohibited Under Title VII?

Title VII prohibits a wide range of discriminatory employment practices based on sexual orientation or gender identity, including but not limited to:

• Hiring
• Termination, furloughs, or layoffs
• Promotions and demotions
• Discipline and performance evaluations
• Training opportunities
• Work assignments and job duties
• Compensation, including pay, overtime, and benefits
• Fringe benefits
• Other terms, conditions, and privileges of employment

Additionally, harassment based on sexual orientation or gender identity is considered unlawful if it is severe or pervasive. Employers must not create or tolerate a hostile work environment. If an employee reports harassment by a customer or client, the employer is legally required to take action to prevent further incidents.

6. Are Non-LGBTQ+ Employees Also Protected from Discrimination?

Yes. Title VII protects all employees from discrimination based on sexual orientation or gender identity, regardless of whether they are LGBTQ+ or not. This means that employers cannot discriminate against straight or cisgender employees. The law also prohibits harassment or any other adverse treatment based on sexual orientation or gender identity.

7. Can an Employer Justify Discrimination Based on Customer or Client Preferences?

No. Customer or client preferences do not justify employment discrimination. Employers covered under Title VII cannot refuse to hire, fire, or alter job assignments based on customer bias regarding an employee’s sexual orientation or gender identity. Segregating employees based on actual or perceived customer preferences is also unlawful. For instance, employers cannot keep LGBTQ+ employees from public-facing roles or assign them to specific locations based on customer expectations.

8. Can an Employer Discriminate Based on Gender Stereotypes?

No. Discrimination based on nonconformity to traditional gender stereotypes is prohibited under Title VII, regardless of an employee’s actual sexual orientation or gender identity. Employers cannot act negatively against individuals for not conforming to masculine or feminine stereotypes. For example, it is unlawful to penalize a male employee for presenting in a way perceived as feminine or to mistreat a female employee for appearing or behaving in a masculine manner.

9. Can an Employer Require a Transgender Employee to Dress According to Their Sex Assigned at Birth?

No. Forcing a transgender employee to dress in a way that does not align with their gender identity is considered sex discrimination under Title VII. Employees must be allowed to dress consistently with their gender identity.

10. Are Employers Allowed to Maintain Sex-Segregated Restrooms and Locker Rooms?

Yes. Courts have long recognized that employers can maintain separate bathrooms, locker rooms, and showers for men and women. However, employers cannot deny employees access to facilities that match their gender identity. If separate facilities exist, transgender men must be allowed to use men’s spaces, and transgender women must be allowed to use women’s spaces. Some employers may also offer unisex or single-occupancy facilities as an option.

11. Can Misuse of Pronouns or Names Be Considered Workplace Harassment?

Yes, in certain situations. Harassment based on gender identity is unlawful under Title VII when it creates a hostile work environment. In Lusardi v. Dep’t of the Army, the EEOC ruled that accidental misuse of a transgender employee’s pronouns or name does not violate Title VII. However, intentionally and repeatedly misgendering an employee may contribute to an unlawful hostile workplace if severe or pervasive enough to create an intimidating or offensive work environment.

12. What Can an Employee Do if Their Title VII Rights Are Violated?

Job applicants and employees who believe they have been subjected to employment discrimination under Title VII can seek assistance from the EEOC. The Equal Employment Opportunity Commission (EEOC) investigates discrimination claims for private sector employees, state and local government workers, and job applicants.

Individuals should contact the EEOC to file a discrimination charge as soon as possible. The filing time limit is generally 180 days from the alleged violation, though it may extend to 300 days if a state or local anti-discrimination law also applies.

To file a charge, individuals can:

• Contact a local EEOC office
• Call the EEOC at 1-800-669-4000 (voice), 1-800-669-6820 (TTY), or 1-844-234-5122 (ASL Video Phone)

Additionally, the U.S. Department of Labor’s Office of Federal Contract Compliance Programs (OFCCP) enforces Executive Order 11246, which prohibits certain federal contractors from discriminating based on sexual orientation or gender identity. It applies to businesses with federal contracts over $10,000.

Federal Employees and Applicants: How to File a Complaint

The process for federal employees and job applicants differs from that of the private sector. Those employed by federal agencies must:

• Contact their agency’s EEO Office to initiate an EEO counseling request.
• Do this within 45 calendar days of the discriminatory incident.
• If alleging a hostile work environment, at least one incident must have occurred within 45 days to be considered.

Missing this timeframe could limit legal options. However, some exceptions apply to ongoing discrimination claims. Federal employees can learn more about their rights by visiting the EEOC’s federal sector process page.

Additionally, federal employees may explore other legal avenues, such as:

• Filing grievances under collective bargaining agreements
• Submitting a prohibited personnel practice complaint with the U.S. Office of Special Counsel, as permitted under the Civil Service Reform Act of 1978

13. Can an Employer Retaliate Against an Employee for Filing a Complaint?

No. Retaliation is illegal under Title VII. Employers cannot punish, harass, or fire an employee for:

• Opposing unlawful discrimination
• Filing a charge or complaint with the EEOC
• Participating in an investigation, hearing, or legal proceeding related to Title VII enforcement

Retaliation includes any action that could discourage an employee from reporting discrimination, such as demotion, threats, or workplace mistreatment. If employees believe they have been retaliated against, they can file a retaliation complaint with the EEOC.