• On June 15, 2020, the U.S. Supreme Court ruled that sexual orientation and gender identity are covered under the category of sex, which has long been protected under Title VII.

Title VII of the Civil Rights Act, enforced by the Equal Employment Opportunity Commission (EEOC), protects individuals against employment discrimination based on:

• Sex
• Race
• Color
• National origin
• Religion

Title VII applies to:

• Employers with 15 or more employees; and
• Employment agencies, labor organizations, and the federal government.

Title VII prohibits:

• Discrimination against any employees or applicants because of their sex regarding:
  • Hiring,
  • Termination,
  • Promotion,
  • Compensation,
  • Job training, or
  • Any other term, condition, or privilege of employment.
• Employment decisions based on stereotypes and assumptions about abilities, traits, or the performance of individuals based on sex; and
• Intentional discrimination and neutral job policies that:
  • Disproportionately exclude individuals based on sex, and
  • Are not job related.

When can gender be considered?

Gender can be considered where it is a bona fide requirement. For example, an employer looking to hire models for women’s clothing would not need to consider male applicants.

Some state laws used to prohibit or limit the employment of women in jobs requiring lifting or carrying weights exceeding certain limits, or other factors. Most have since been repealed. Such laws did not take the abilities of individual women into account and, therefore, were found to discriminate on the basis of sex. Where such laws still exist, they cannot be used as a defense to an unlawful employment practice.

It is also unlawful to retaliate against an individual for:

• Opposing employment practices that discriminate based on sex; or
• Filing a discrimination charge, testifying, or participating in any way in an investigation, proceeding, or litigation under Title VII.

Sexual orientation and gender identity

On June 15, 2020, the U.S. Supreme Court ruled that sexual orientation and gender identity are covered under the characteristic of sex, which has long been protected under Title VII.

Family responsibility discrimination

Some employees have claimed “family responsibility” discrimination, which is effectively a form of sex discrimination. Typically, employees claim that assumptions about gender stereotypes formed the basis for discrimination. For example, if female employees are denied a promotion because of perceived child-care responsibilities, they might claim family responsibility discrimination based on those gender stereotypes.