By Eric B. Meyer
Lawsuits for transgender discrimination
Yesterday, the EEOC initiated litigation against two separate employers: two lawsuits alleging sex discrimination “in violation of federal law by firing an employee because she is transgender, because she was transitioning from male to female, and/or because she did not conform to the employer’s gender-based expectations, preferences, or stereotypes.”
In one lawsuit, the EEOC claims that a funeral home fired an employee who had been with the company for several years, but two weeks after she wrote a letter to the company explaining that she was “undergoing a gender transition from male to female, and would soon start to present (e.g., dress) in appropriate business attire at work, consistent with her gender identity as a woman.”
In the other lawsuit, the EEOC alleges that the employee was fired only after she began to present as a woman and informed her employer that she was transgender.
This seems wrong. But is it illegal?
Title VII prohibits discrimination based on race, color, religion, national origin, and sex. The prohibition on sex discrimination does not explicitly include transgender discrimination (or, for that matter, LGBT discrimination, generally).
In Macy v. Department of Justice, the EEOC equated both discrimination based on gender identity and transgender discrimination (or intend to transition) to sex discrimination under Title VII.
IMHO, Title VII does not cover gender identity or transgender discrimination; provided that, if an employer would terminate any employee who transitions from one sex to another (male to female or female to male), then that employer is not treating males better than females or vice-versa. It is treating all transgender employees equally (bad).
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[Editor’s note: I’m not saying this is right. I’m just saying that it does not violate Title VII. Had the Congress intended that Title VII cover transgender discrimination or discrimination based on gender identity, it would have said so more explicitly].
However, there is a nuance which may apply here and give the EEOC’s two lawsuits some teeth. The U.S. Supreme Court in Price Waterhouse v Hopkins held that Title VII forbids discrimination against an employee who fails to conform to the employer’s gender-based expectations, preferences, or stereotypes. So, if these two transitioning women were terminated because they did not conform to employer expectations for a stereotypical male (i.e., how they were born), then the Price Waterhouse decision would control.
Either way, employers must recognize that this is just the tip of the iceberg.
More such cases are coming
Win or lose, the EEOC is going to pursue such claims against employers whom it perceives have discrimination against transgender employees.
Employers should also remember that, even though federal law may not apply here, there are many states and localities that have implemented explicit LGBT workplace discrimination bans. Plus, employers are free to enact their own rules against LGBT discrimination in the workplace.
This was originally published on Eric B. Meyer’s blog, The Employer Handbook.