The Equal Employment Opportunity Commission filed lawsuits recently against two employers located in Florida and Michigan alleging that both employers had violated Title VII by discriminating against transgender employees. These cases mark the first time the EEOC has brought suit under Title VII of the Civil Rights Act of 1964 against a private employer to protect transgender workers. The EEOC in 2012 had commenced an administrative proceeding against a federal agency alleging discrimination under Title VII to protect transgender rights.
The EEOC alleged in the Florida case that the employer, a medical clinic, terminated an employee who presented as a male and then began dressing as a female. This employee also revealed that she was undergoing a gender transition from male to female. The EEOC also alleged that the employer, after claiming that it was eliminating the transgender employee’s position, then only two months later hired a male employee for that position.
A similar case was filed in Michigan against a funeral home when the EEOC alleged that the funeral home discriminated by firing an employee who also revealed she was in the process of transitioning from a male to a female. In this case, the EEOC alleged that the employer had told the employee that the fact that she was transitioning from a male to a female was “unacceptable”.
These most recent lawsuits follow many other legal developments to protect the civil rights of transgender workers and signify the EEOC’s desire to strengthen the protections for transgender employees under Title VII. President Obama in July 2014 issued an Executive Order prohibiting federal contractors from discriminating against lesbian, gay, bisexual and transgender workers. Shortly thereafter a new directive was issued by the Department of Labor which clarified the DOL’s position that sex-based discrimination under Title VII includes any bias an employer has based on an employee’s gender-identity or transgender status.
What does this mean for all of you as employers. That even though federal law does not yet prevent discrimination based on gender-identity and even though your state’s law may not either, you need to be aware that the EEOC takes the position that to discriminate based upon gender identity or transgender status is prohibited by Title VII because it constitutes sex-based discrimination. This is so even though Title VII does not yet include gender identity as a protected class.