In late September, the Equal Employment Opportunity Commission (“EEOC”) took an unprecedented move in filing its first two lawsuits in federal court alleging that employees were terminated because they were transitioning between genders.
In Equal Employment Opportunity Commission v. R.G. & G.R. Harris Funeral Homes, Inc., and Equal Employment Opportunity Commission v. Lakeland Eye Clinic, brought in Michigan and Florida respectively, the EEOC alleged that employees were terminated for being transgender and not conforming to the employer’s gender-based expectations. The suits are historic for the EEOC, an agency that despite proclaiming in the past that Title VII protects transgender workers, has never filed a case in federal court on their behalf. Title VII’s prohibition of sex discrimination includes discrimination on gender stereotyping.
While these are the first lawsuits filed in federal court, the EEOC has advised for years that discrimination against transgender individuals constitutes sex discrimination. In 2012, the EEOC found that sex discrimination includes gender identity discrimination in an agency decision regarding a transgender woman who was denied a job by the Bureau of Alcohol, Tobacco, Firearms and Explosives (“BATF”). In that case, the applicant disclosed her gender transition midway through the hiring process, and the BATF allegedly informed her that funding for the position was suddenly cut.
The EEOC has announced that the recent historic suits are part of an organized campaign of strategic enforcement, that places top priority on coverage of gay and transgender people under Title VII’s prohibition of sex discrimination. This follows a number of state court suits under state, city, and municipal laws alleging transgender discrimination, as well as President Obama’s recent executive order making it illegal for federal contractors to discriminate on the basis of sexual orientation or gender identity.
Employers should be careful to ensure that their employees have proper training, and to draft broad equal opportunity policies that invite inclusion of and deter discrimination against LGBT employees in the workplace.