Are You Keeping Pace With The Times?—Transgender Status in the Workplace

A few months ago we reported on the Equal Employment Opportunity Commission’s increased efforts to prohibit employment discrimination against lesbian, gay, bisexual, and transgender individuals and promised that we would continue to monitor those efforts to see what impact they may have on employers. (You can find that article here.) A federal district court recently weighed in on the EEOC’s position, upholding the EEOC’s allegations of workplace discrimination against a transgender woman.

As background, although the EEOC acknowledges that transgender status is not explicitly protected under Title VII’s provisions, the EEOC has taken the stance that transgender employees are protected from employment discrimination under Title VII—by the legal theory of “gender stereotyping.” Gender stereotyping includes taking an adverse action against a person on the basis of that person’s nonconformance to sex- or gender-based preferences.

In September of 2014, the EEOC filed two lawsuits alleging discrimination on behalf of two transgender employees based on the theory of gender stereotyping. EEOC v. Lakeland Eye Clinic (No. 8:14-cv-2421) in the Middle District of Florida and EEOC v. R.G. & G.R. Harris Funeral Homes, Inc. (No. 2:14-cv-13710) in the Eastern District of Michigan both involve transgender women who allege they were terminated after they alerted their respective employers that they would begin transitioning from presenting as a man to presenting as a woman. The EEOC alleged that the women were fired because they did not conform to the employers’ sex- or gender-based preferences, expectations, or stereotypes. Lakeland Eye Clinic ultimately settled for $150,000, but Funeral Homes is ongoing as a result of the ruling mentioned above.

In Funeral Homes, the employer moved to dismiss the case on the grounds that transgender status is not a protected class under Title VII. The Eastern District of Michigan denied the motion, holding that Title VII protects transgender employees from sex discrimination based upon their failure to conform to sex- or gender-based stereotypes.

Given the EEOC’s increased attention to transgender rights in the workplace, and the decision in Funeral Homes, employers should revisit their policies, such as dress code and grooming policies, to see how they affect transgender employees. Employers should also revisit their anti-discrimination policies to ensure they prohibit discrimination against transgender employees in the workplace. Employers may also want to develop policies for handling an employee’s transition. If you would like more information or help reviewing your policies as they relate to this article, please do not hesitate to contact your DeWitt employment attorney.