The “T” for “transgender” in the acronym LGBT (Lesbian, Gay, Bi-sexual and Transgender) has become a popular topic for discussion in recent months. However, even before the publicity surrounding the transition of Caitlyn Jenner (formerly Bruce Jenner), the EEOC and various courts have taken strong positions on the issue of whether discrimination against transgender individuals violated Title VII and other statutes. For example, in the case of Glenn v Brumby (11th Cir. 2011), a male transitioning to a female was terminated expressly because of her transition. The Eleventh Circuit (covering Alabama, Florida, and Georgina) found that since everyone is protected against discrimination based on sex stereotypes, such protections cannot be denied to transgender individuals. According to the Court, “The nature of the discrimination is the same, it may differ in degree but not in kind.” The Court also suggested that discrimination based on sex stereotypes is subject to heightened scrutiny under the Equal Protection Clause, and that government termination of a transgendered person for his or her gender nonconformity is unconstitutional sex discrimination.
The EEOC has also made it clear that discrimination on the basis of sexual orientation, including “transgender status” was tantamount to discrimination “on the basis of sex.” The EEOC’s position was essentially based upon the Supreme Court’s holdings in Price Waterhouse v. Hopkins (1989) (discrimination based upon “assumptions and/or expectations” about how persons of a certain sex should dress, behave, etc. … is unlawful sex discrimination) and Oncale v. Sundowner Offshore Services (1998) (same-sex sexual harassment is sex discrimination under Title VII). Accordingly, the EEOC over the last few years has taken the following steps:
- The agency included “sexual orientation discrimination” as a priority issue in its Strategic Enforcement Plan for Fiscal Years 2012 thru 2016;
- The EEOC, itself, since at least July 2011 has issued various Commission Decisions involving federal employees who allegedly were discriminated against because of “sex stereotyping.” In each case the federal employee involved had filed a complaint alleging in substance that they had been discriminated against because of some type of gender identity issue including transgender status. In each case the Federal agency involved dismissed the respective complaints for “failure to state a cause of action.” However, upon appeal, the Commission reversed the dismissal of the complaints in question and found that, indeed, a transgender employee or other employee who, allegedly had been discriminated against because of gender identity issues might very well have a cause of action under Title VII on the basis “sex stereotyping.” The cases were:
- Macy v. Eric Holder, Attorney General, Dept. of Justice (April 20, 2012): Intentional discrimination against a transgender individual because that person is transitioning is sex discrimination under Title VII.
- Vetetto v Patrick R. Donahoe, Postmaster General (July 1, 2011): Reversed the agency’s dismissal of the Complaint and accepted a Title VII claim that a supervisor’s harassment was motivated by sexual stereotyping that men should marry only women.
- Complainant v. Department of Homeland Security (August 20, 2014): Reaffirmed previous findings that federal employees discriminated against on the basis of sexual orientation or sexual identity can establish violation of Title VII based on a theory of sex stereotyping.
- Complainant v. Foxx (July 16, 2015): In this case the EEOC went even farther in outlining its position on discrimination against LGBT employees in the Federal Sector. Previously the Commission had held that claims of discrimination on the basis of “sexual orientation” were not, per se, covered by Title VII, and that such claims had to be analyzed in terms of whether the alleged discrimination in fact amounted to “sex stereotyping.” However in this case the Commission found directly that a male Air Traffic Controller who alleged that he had been denied a promotion because he was gay could directly pursue a claim of sex discrimination under Title VII based upon his sexual orientation.
Private Sector Actions By The EEOC
In order to properly assess what’s happening in the private sector with respect to LGBT issues, including transgender charges, it might be helpful to take a glance at the number of such charges that have been filed with the EEOC during the last few years. The following table shows the growth in the number of LGBT-related charges filed with the EEOC between January 2013 and March 31, 2015.
Click here to view table.
In order to put the information from the table in proper perspective it should be mentioned that the number of total charges filed with the EEOC under all statutes was 93,727 in FY 2013 and 88,778 in FY 2014. (The total number of all charges for FY 2015 to date was not available on the EEOC’s website at the time of this writing.) Nonetheless, in this light it is clear that LGBT charges did not represent a large percentage of the total charges filed with the EEOC in the years in question. Even in FY 2014, wherein almost 1,100 charges were filed, that number represented only approximately 1.3% of the total charges. However, as can be seen from the table there was significant growth in the number of LGBT charges between FY 2013 and FY 2014, and it is reasonable to project that the number of LGBT charges will show an increase when the full year of FY 2015 is completed.
In an effort to fulfill its obligations under the Agency’s Strategic Enforcement Plan for FY 2012 thru 2016, the EEOC has filed three lawsuits involving transgender issues against private sector employers within the last year. They can be summarized as follows:
- In the case of EEOC v. Lakeland Eye Clinic (M.D. Fla. 2014), allegedly the employer fired an employee because she was transitioning from male to female. According to the EEOC, the employee had been performing her duties satisfactorily, however, after she informed the employer that she was a transgender and intended to start presenting herself as a woman, her employer, Lakeland, allegedly discharged her because she did not conform to the employer’s gender-based expectations, preferences or stereotypes. Lakeland settled this lawsuit on April 13, 2015, by a consent decree calling for the payment of $150,000 to the charging party.
- In the case of EEOC v. R.G. & G.R. Harris Funeral Homes, Inc. (E.D. Mich. 2014), the employer allegedly fired a funeral director/embalmer because she was a transgender and at the time was transitioning from male to female. The EEOC alleged that she was fired because she did not conform to the employer’s gender-based expectations, preferences, or stereotypes. This case is still pending.
- In the case of EEOC v. Deluxe Financial Services, Corp., (D. Minn. 2015) the EEOC alleged that, Britney Austin, an employee who worked in the company’s Phoenix office, consistently performed the duties of her position satisfactorily during her tenure at that office. However, according to the EEOC, after she began to present herself as a woman, she informed her supervisors that she was a transgender. Thereafter, the employer refused to allow her to use the women’s restroom and she was subjected by her supervisors and coworkers to a hostile working environment including hurtful epithets and the deliberate use of the wrong gender pronouns in referring to her. The EEOC alleged that such conduct based on transgender status and gender stereotyping is prohibited by Title VII because it subjects the employee to a hostile work environment because of sex. The suit seeks both monetary and injunctive relief.
As might be expected, a number of private lawsuits, too numerous to mention here, have also been filed on behalf of transgender plaintiffs throughout the country. However, the Court in one in particular case, Schroer v. Billington (D.D.C. 2008), in my judgment deftly summarized the basic reason that transgender discrimination violates Title In that case the court compared the Plaintiff’s claim to one in which an employee is fired because she converted from Christianity to Judaism, even though the employer does not discriminate against Christians or Jews generally but only “converts.” The Court reasoned that “since such an action would be a clear case of discrimination …” because of religion, “Title VII’s prohibition of discrimination … because of sex must correspondingly encompass discrimination because of a change of sex.”
Finally it should be mentioned that on July 23, a much broader measure entitled “The Equality Act” was introduced by members of both the House and the Senate in their respective chambers. In substance The Equality Act would be an amendment to Title VII containing provisions that would broadly prohibit discrimination on the basis of sexual orientation and gender identity not only in employment but also including housing, public schools, banks, and would prevent other entities from using the Religious Restoration Act as a shield against discrimination claims. This Bill is much broader than the Employment Non-Discrimination Act, (ENDA) which had been introduced several times but not passed since 2007. The Equality Act is apparently a reaction to the Supreme Court's holding in Burwell v. Hobby Lobby. It will be interesting to see what happens to this new Act (we expect that not much will happen to it).