Why it matters: In its first cases alleging bias against transgender employees, the Equal Employment Opportunity Commission has filed suit against a Florida eye clinic and a Michigan funeral home. In both actions an employee began the process of transitioning from male to female and both employers reacted by terminating the employees at issue, according to the EEOC. Although the Florida employer claimed the position was being eliminated, it hired a new employee soon after, while the agency said the funeral home director told the employee what she was proposing to do was “unacceptable.” The EEOC alleged that the employers engaged in discriminatory sex-based considerations because the employees were transgender, transitioning in gender, and/or because the employees did not conform to the employer’s sex- or gender-based stereotypes, preferences, or expectations. The two lawsuits reiterate the EEOC’s intent to focus on “coverage of lesbian, gay, bisexual and transgender individuals” as part of its Strategic Enforcement Plan. Employers should be prepared to avoid allegations of discrimination if an employee identifies as transgender or, like the plaintiffs in the EEOC suits, states an intent to transition.

Detailed Discussion

Michael Branson was hired as Director of Hearing Services at the Lakeland Eye Clinic in Florida in July 2010. Branson – who presented as male at the time – provided hearing services to patients referred to him by the clinic’s physicians.

During February 2011, Branson began wearing feminine attire to work, including women’s makeup and clothing, and noticed that coworkers “snickered, rolled their eyes, and withdrew from social interactions with her in response to her changing appearance,” according to the complaint.

In April, the owner of the clinic requested a meeting with Branson and confronted her about her changing appearance. Branson informed him that she was undergoing a gender transition from male to female and would be legally changing her name from Michael to Brandi.

Branson alleged that after the meeting, the ostracism and derogatory comments by coworkers increased and all but one of the physicians stopped referring patients to her, depriving her of a client base. Branson was terminated in June and told that her position was being eliminated and the hearing services division closed. But the division continued to operate and a male employee – who conformed to traditional male gender norms – was hired in August, the EEOC said.

The Eye Clinic’s “decision to terminate Branson was motivated by sex-based considerations,” the agency claimed in the complaint. “Specifically, defendant terminated Branson because Branson is transgender, because of Branson’s transition from male to female, and/or because Branson did not conform to the defendant’s sex- or gender-based preferences, expectations, or stereotypes.”

In the Michigan case, embalmer and funeral director Aimee Stephens informed her employer and coworkers of her plans to undergo a gender transition from male to female in a July 2013 letter. Stephens said she planned to dress in appropriate business attire at work as a woman from then on and asked for her colleagues’ support and understanding.

Instead, the EEOC said Stephens was terminated two weeks later, with the funeral home owner stating that what she was “proposing to do” was unacceptable.

Seeking to hold both defendants liable for violating Title VII, the EEOC referenced a 2012 agency ruling in Macy v. Department of Justice, where the Commission recognized for the first time that employment discrimination against transgender employees constitutes discrimination because of sex. “The lawsuits filed today are consistent with the Commission’s position in Macy and binding court precedent,” the agency said in press releases about the cases.

Both suits seek a permanent injunction banning the defendants from engaging in unlawful discrimination and ordering them to institute and carry out policies and programs that provide equal employment opportunities regardless of sex, including gender identity. In addition, the agency requests reinstatement or front pay for Branson and Stephens as well as back pay and punitive damages.

To read the complaint in EEOC v. Lakeland Eye Clinic, click here.

To read the complaint in EEOC v. R.G. & G.R. Harris Funeral Homes, click here.