Transgender Employment Discrimination Being Aggressively Attacked by EEOC

The recent Vanity Fair cover story featuring the former-Bruce/now-Caitlyn Jenner is representative of the increasing awareness and visibility of transgender individuals and the unique issues and challenges they face. To the extent that employment discrimination is one of those challenges, the Equal Employment Opportunity Commission (EEOC) has made it clear that it views such discrimination to be a violation of federal law and will be aggressively prosecuted.

Violation of Title VII

Title VII of the Civil Rights Act of 1964 prohibits employment discrimination based on race, color, religion, sex and national origin. While the act does not refer to gender identity or transgender status as being a protected class under Title VII, the EEOC has since 2012 taken the position that gender identity discrimination in employment is prohibited sex discrimination under Title VII and can be the basis of a discrimination claim and an EEOC lawsuit (though it is important to note that the EEOC’s position does not have the force and effect of law).

Suits in Florida and Michigan

Last September, the EEOC filed its first-ever lawsuits alleging discrimination against employers regarding transgender employees. In Michigan, the EEOC suit alleges that funeral home director Aimee Stephens was fired after she told her employer she was undergoing a gender transition. In the Florida case, Brandi Branson – initially hired by an eye clinic as Michael – claims she was fired after she began to express her gender identity as female.

In announcing the suits, the EEOC specifically referenced its 2012 ruling in Macy v. Dep’t of Justice, EEOC Appeal No. 0120120821, 2012 WL 1435995 (April 20, 2012), in which it ruled that employment discrimination against employees because they are transgender, because of their gender identity, and/or because they have transitioned (or intend to transition) is discrimination because of sex, and thus violates Title VII.

The filing of these actions is also proof that the EEOC intends to vigorously follow through on the elements of its 2012 Strategic Enforcement Plan that make “coverage of lesbian, gay, bisexual and transgender individuals under Title VII’s sex discrimination provisions” a top enforcement priority.

The EEOC recently settled the Florida case, but the Stephens litigation is moving forward after the court denied the employer’s motion to dismiss. While reiterating that “transgender” is not a protected status under Title VII, the court noted a Sixth Circuit decision holding that an employer’s treatment of a transgender employee in consideration of the employer’s sex-based or gender-based preferences, expectations, or stereotypes is actionable under Title VII.

Widespread Discrimination Against Transgender Employees

A 2011 study conducted by the National Gay and Lesbian Task Force found that 90 percent of transgender people surveyed reported harassment or discrimination on the job, with 47 percent saying they had been fired, not hired or denied a promotion because of their transgender identity.

As more and more transgender individuals feel comfortable expressing their gender identity and are more open about their transition between genders, employers will hopefully be increasingly cognizant of their obligations to treat the sexual identities of their transgender employees as they would female or male employees in terms of avoiding any adverse employment actions based on their transgender status.

For transgender individuals who may be on the receiving end of such discrimination, it is good to know that remedies are available to them and that both the law and public awareness will hopefully reduce the amount of workplace discrimination that members of the transgender community face in the future.