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EEOC Increasing Enforcement Efforts to Prohibit Employment Discrimination Against LGBT Individuals

On February 3, 2015, the Equal Employment Opportunity Commission (EEOC) issued an internal memorandum specifically directing its district, field and area offices to accept and handle complaints of discrimination based on sexual orientation or gender identity/transgender status pursuant to the sex discrimination provision of Title VII of the Civil Rights Act.

The February 2015 memorandum is the most recent step taken by EEOC since the approval of its FY 2012-2016 Strategic Enforcement Plan in December 2012, which listed the coverage of LGBT individuals under the anti-discrimination provisions of Title VII as one of the agency’s enforcement priorities. According to data published by EEOC, the agency identified 801 complaints of discrimination related to gender identity and/or sexual orientation during FY 2013. During the first three quarters of FY 2014, EEOC received 784 complaints of discrimination based on sexual orientation or gender identity/transgender status.

Title VII of the Civil Rights Act prohibits discrimination in employment based on an individual’s sex, among other protected traits. Although Title VII does not specifically list sex orientation, gender identity or transgender status among the types of sex discrimination it prohibits, both the EEOC and federal courts have recently interpreted it to cover employees or job applicants who are discriminated against because they do not conform to gender stereotypes or traditional gender norms.

The 2012 Strategic Enforcement Plan was preceded by several EEOC administrative decisions reviewing whether the agency has the power to accept for investigation claims of sex discrimination based on sexual orientation or gender identity under Title VII. In Macy v. Department of Justice, EEOC Appeal No. 0120120821 (April 20, 2012), the EEOC ruled that an individual’s claim of being denied a job opportunity because of her transgender status fell within the purview of Title VII’s sex discrimination provisions. In Veretto v. United States Postal Service, EEOC DOC 0120110873 (July 1, 2011) the EEOC accepted a claim of hostile work environment under Title VII of the Civil Rights Act, where the supervisor’s harassment was motivated by his stereotypical expectation that men should only marry women. Similarly, Castello v. United States Postal Service, EEOC DOC 0520110649 (December 20, 2011) accepted for investigation a Title VII sex discrimination complaint, where the supervisor’s conduct was motivated by his stereotypical perception of traditional gender roles in relationships.

Since these administrative decisions and the subsequent approval of its Strategic Enforcement Plan, the EEOC has actively pursued enforcement in this area by initiating lawsuits against private sector employers, for claims of discrimination based on sexual orientation or gender identity, pursuant to Title VII of the Civil Rights Act. EEOC has also filed amicus briefs in other pending litigations, supporting the application of Title VII sex discrimination provisions to claims based on sexual orientation and transgender status. Our office will monitor the progress of these pending actions and will provide updates as new information becomes available.

About the Author

Raluca Vais-Ottosen has assisted numerous clients with Immigration matters ranging from family-based and individual Immigration applications, to employment related visas and I-9 employment eligibility verification issues. In addition to her Immigration practice, she also has an extensive background in Employment Law. She assists companies in a number of areas, including but not limited to claims of workplace discrimination, harassment and retaliation, termination and constructive discharge, workplace investigations by State and Federal agencies, as well as Employment Litigation.

Contact Luca by email or by phone at (608) 252-9291.

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