September 20, 2021

Sex Discrimination: The Debate Continues

The issue of sex discrimination in employment has received much attention the last few months.  Here are some highlights.

Sexual Orientation and Gender Identity (SOGI). On June 15, 2021, the Equal Employment Opportunity Commission (EEOC) published a technical assistance document and SOGI landing page. This included a statement that “employers may not deny an employee equal access to a bathroom, locker room, or shower that corresponds to the employee’s gender identity.” That was not really news from the EEOC.  They iterated the same philosophy in 2015. Now, states are taking action.

On August 30, 2021, 20 states filed suit alleging guidance issued by the EEOC ( and U.S. Department of Education) improperly broadened the scope of the SCOTUS decision. Then, on September 20, 2021, the State of Texas filed suit against the EEOC alleging the agency exceeded its authority in issuing the same guidance.

Sex Stereotyping. On September 7, 2021, a husband, who worked for the same employer as his wife, filed suit (his wife filed a number of her own claims against the same employer). The husband alleged that his employer discriminated against him when it “would not allow him to take his accrued sick leave to care for his children” but permitted his wife to do so.  The employer denied the allegation, attesting that they suggested the spouses decide between them who would take time off.  So, was this an issue of sex discrimination via stereotyping (the wife cares for the children, not the husband) or was it based on a policy or practice of not letting two employees use paid sick leave at the same time, for the same reason? While the court dismissed many of the claims, on this issue it found, “this case presents a quintessential example of the classic ‘he said, she said” and remanded the case to the lower court.

Religious Observance and SOGI. Without getting too far into the weeds on this one, the Religious Freedom Restoration Act (RFRA) restricts the government’s ability to restrain an individual’s exercise of religious freedom. The exception is when the government can show the burden on the individual is in furtherance of a “compelling government interest” and is the least restrictive means of furthering that interest. So, when a faith-based, private sector employer refuses to hire an individual based on that individual’s sexual orientation, is that an issue covered under RFRA?  An argument for “No” is that the government is not a party to the dispute: it is a matter between a private employer and an individual.  An argument for “Yes” is, when the individual files a lawsuit, it is the judicial branch of government that will hear the case so the RFRA does apply. On September 3, 2021, in this case, the court held that the RFRA did not apply to or protect the employer.

Tips: Watch these issues as they unfold. One or more may impact your employment policies and practices.  Want to learn more? Click here to check out September’s webcast, “Sex Discrimination: It’s More Than It Used to Be.” $25 pp Pre-approved by HRCI and SHRM for 1.25 credits.