The Higher Ed Workplace Blog

New Guidance on Sexual Orientation and Gender Identity Discrimination Under Title VII and Title IX

On June 15 and 16, the U.S. Equal Employment Opportunity Commission (EEOC) and Department of Education’s Office for Civil Rights (OCR) released new resources on federal enforcement of protections against sexual orientation and gender identity discrimination. The U.S. Supreme Court ruled last year in Bostock v. Clayton County that the bar on workplace discrimination based on “sex” in Title VII of the Civil Rights Act of 1964 also barred discrimination sexual orientation and gender identity discrimination. The EEOC’s materials focus specifically on workplace rights under Title VII, while the OCR notice addresses Title IX of the Education Amendments of 1972 prohibition on discrimination on the basis of sex in any education program or activity offered by a recipient of federal financial assistance.

New EEOC Resources on Sexual Orientation and Gender Identity

The materials released by the EEOC include a new webpage dedicated specifically to detailing protections against workplace sexual orientation and gender identity discrimination, harassment, and retaliation, as well as how to file a discrimination charge with the EEOC. Additionally, the EEOC issued a new technical assistance document that explains the significance of the U.S. Supreme Court’s Bostock ruling and other established positions held by the EEOC on sexual orientation and gender identity. The document uses a Q&A format to specifically consolidate information about sexual orientation and gender identity discrimination into one location, reiterate established positions of the EEOC on basic Title VII concepts, rights, and responsibilities as they relate to sexual orientation and gender identity discrimination, and provide information about enforcement policies of the EEOC as it relates to Title VII and protecting employees’ civil rights.

According to the EEOC press release, their new resources will help “to educate employees, applicants and employers about rights of all employees, including lesbian, gay, bisexual and transgender workers, to be free from sexual orientation and gender identity discrimination in employment.”

OCR Notice of Interpretation of Title IX

According to OCR, the issued Notice of Interpretation also stems from the Bostock decision, as well as President Biden’s Executive Order titled, “Guaranteeing an Educational Environment Free from Discrimination on the Basis of Sex, Including Sexual Orientation or Gender Identity.” The notice explains that, while the Bostock decision ruled specifically on Title VII, the Department of Education has determined that it also applies to Title IX due to textual similarity between the two statutes, additional federal court rulings that have relied on Bostock to recognize Title IX’s prohibition on sex discrimination includes sexual orientation and gender identity, and a Department of Justice memorandum that concludes that Bostock applies to Title IX.

The notice makes it clear that it is only to be used as a guide in processing complaints and conducting investigations. It does not specifically determine the outcome of any particular case.

Equality Act Currently Stalled in the Senate

In addition to the agency actions detailed above, Congress has introduced the Equality Act of 2021, which would amend Title VII to incorporate “sexual orientation” and “gender identity” as protected characteristics to provide additional clarity and direction to higher education institutions and other employers. The House passed the bill on February 25, and though the Senate has held committee hearings on the bill, it has not been brought to the floor for a vote.

CUPA-HR will keep members apprised of any additional resources and updates from Congress, the EEOC, OCR, and any other federal agencies that provide more guidance on protections against sexual orientation and gender identity discrimination.