Update on Transgender Rights in the Workplace
Transgender rights in the workplace continue to materialize and develop in the wake of the EEOC’s 2012 landmark Macy v. Holder decision, which provided a Title VII employment discrimination cause of action for transgender plaintiffs in the federal employment context.
In Macy, the EEOC held that discrimination based on sex includes discrimination based on transgender identity. The EEOC reasoned that transgender discrimination is a form of sex discrimination because the employer adversely reacts to the individual’s non-stereotypical gender expression, the employer is uncomfortable with the transition, or the employer dislikes the person’s transgender identity. According to Commission in Macy, each of these scenarios illegally takes gender into account, thus giving rise to a Title VII sex discrimination claim. See discussion of Macy in the December 2012 Newsletter submitted by the Employment Law and Diversity Committees.
In the past, “sex stereotyping” could provide a cause of action for a transgender person who did not conform to stereotypes associated with his or her biological sex. However, gender identity per se was not protected by federal law, and thus discrimination based simply on one’s gender identity was not enough to invoke Title VII relief. The EEOC’s interpretation of Title VII in Macy afforded much greater protection to transgender people, who, according to the Commission, may allege discrimination based solely on their transgender status. This interpretation expanded Title VII to those who identify as transgender, are in transition to another sex, or do not otherwise conform to sex stereotypes.
During the two years after this decision, federal government actors have advanced protections for transgender employees in several ways: (1) the EEOC has specifically targeted transgender rights for enforcement, (2) EEOC cases have further defined harassing behavior in the transgender context, (3) the EEOC has filed lawsuits in federal courts on behalf of transgender plaintiffs, and (4) President Obama issued an Executive Order adding gender identity as a protected status for federal employees and applicants, as well as federal contractors (pending a rule from the Department of Labor). This executive and agency activity is occurring against the decades’ long backdrop of Congress’ failure to pass the Employment Non Discrimination Act (ENDA) since its introduction in 1994. The future of employment discrimination law continues to unfold in real time, presenting new compliance, legal, and social challenges for employers.
First, the EEOC specifically targeted transgender rights in the workplace for strategic enforcement. Indeed, the EEOC’s latest report reveals that the Commission received 300 charges of discrimination based on gender identity since 2013. The EEOC Strategic Enforcement Plan for Fiscal Years 2013-2016 outlines three emerging and developing areas of employment discrimination, one of which is transgender sex discrimination under Title VII. The Macy v. Holder decision has played a significant role in the EEOC’s choice to provide special attention to this issue. This directive leaves no question that transgender Title VII cases are on the EEOC’s radar. As a result of targeting transgender discrimination claims, it is no surprise that the EEOC has filed lawsuits alleging employment discrimination against transgender individuals in the private employment sector, and has sought enforcement of workplace anti-discrimination measures in Commission hearings. Thus, charges of discrimination from transgender applicants and employees under Title VII will likely increase and receive heightened consideration.
As more Title VII charges involving transgender complainants are filed, another EEOC decision post-Macy sheds light on what actions constitute harassment in the transgender context. In Jameson v. Donahoe, the EEOC recognized that a governmental employer’s purposeful use of the wrong gender pronoun to refer to a transgender woman can be harassment based on sex. Jameson v. Donahoe, Appeal No. 0120130992, Agency No. 1F953001112, 2013 WL 2368729 (May 21, 2013). One of the U.S. Postal Service employee’s complaints was that “her supervisor repeatedly referred to her as a ‘he’” despite knowing that she was transgender. The EEOC initially dismissed this portion of the complaint for failure to state a claim because it did not rise to the level of severity necessary to establish a hostile work environment. On appeal, the Commission held that her dismissed complaints should be evaluated as a whole rather than individually, and took an extra step to address the intentional misuse of gender pronouns. The Commission explained that “supervisors and coworkers should use the name and pronoun of the gender that the employee identifies with in employee records and in communications with and about the employee. Intentional misuse of the employee's new name and pronoun may cause harm to the employee, and may constitute sex based discrimination and/or harassment.” Thus, Jameson v. Donahoe instructs employers to be mindful of this type of harassment for transgender employees.
Macy v. Holder’s influence on judicial decisions will surely be tested as the first EEOC-litigated transgender discrimination cases are heard in the federal courts. The EEOC made history when it filed two suits alleging discrimination on the basis of sex for transgender status in September 2014. Both cases are currently pending in federal district court, and their outcomes will undoubtedly shape the future of transgender rights as courts decide whether or not to follow Macy v. Holder and extend the definition of “because of sex” under Title VII.
The first case is EEOC v. R.G. & G.R. Harris Funeral Homes, Inc., filed in the Eastern District of Michigan.2:14-cv-13710 (E.D. Mich.). The complaint alleges that the Funeral Home fired transgender woman Amiee Stephens (f/k/a William Anthony B. Stephens), a funeral director/embalmer at the Funeral Home since 2007, when Stephens informed the Funeral Home that she would transition from male to female in 2013.Stephens wrote a letter explaining her intent to begin dressing and presenting as a female in work-appropriate attire.At the time Stephens wrote the letter, the Funeral Home provided its male employees with suits, but did not provide its female employees with work clothing.The Funeral Home fired her two weeks later and explained that her proposal was unacceptable while still a biological male.
The EEOC contends that the Funeral Home unlawfully discriminated against Stephens because Stephens would no longer conform to the Funeral Home’s “sex- or gender-based preferences, expectations, or stereotypes” when she transitioned from male to female.The complaint requests many types of relief, including a permanent injunction from discrimination, back pay, front pay, pecuniary and non-pecuniary losses, and punitive damages. The Funeral Home filed a motion to dismiss for failure to state a claim, arguing that: (1) “gender identity” is not a protected class under Title VII, (2) many courts have not adopted Macy v. Holder, (3) the EEOC’s attempt to “shoehorn” gender identity into sex discrimination is an invalid ultra vires agency act, (4) Price Waterhouse v. Hopkins is distinguishable because it did not involve an individual presenting as a different sex, (5) employers may mandate gender-specific dress codes and grooming policies, and (6) Stephens cannot claim discrimination based on being female because Stephens has not yet legally or medically changed sex.
The second case is EEOC v. Lakeland Eye Clinic, P.A., currently pending in the Middle District of Florida. 8:14-cv-02412 (M.D. Fla.).In this case, the complaint alleges that Lakeland fired transgender woman Brandi Branson (f/k/a Michael Branson) as the Director of Hearing Services because of her transition from male to female. Branson claims that after she began presenting as a female approximately seven months after hire, co-workers made derogatory comments and physicians stopped referring patients to her. Lakeland explained that her position was being eliminated, fired her, and then hired a male replacement for Branson’s position two months later. The EEOC prayed for similar relief as in the R.G & G.R. Harris Funeral Homes case, but also requested reinstatement.
While each case is far from resolution, employers and employees alike should be attentive as the cases progress and interpret transgender rights under Title VII.
Finally, transgender rights are crystalizing for federal government employees and contractors. President Obama’s July 21, 2014 Executive Order 13672 added “gender identity” as a protected status for federal applicants and employees. Although the order currently applies only to federal employees, the Department of Labor released regulations applicable to federal contractors in December 2014. The Department of Labor’s final rule will be effective on April 8, 2014 and includes two key requirements. First, federal contractors may not discriminate against transgender employees during performance of the contract. Second, the rule requires federal contractors’ equal employment opportunity statements in solicitations, contracts, and postings to include a statement explaining that all qualified applicants will be considered for employment without regard to gender identity. In the meantime, the Office of Federal Contract Compliance Programs issued Directive 2014-02 on August 19, 2014, commanding its compliance officers to investigate and evaluate complaints of discrimination based on gender identity.
Like the EEOC in Macy, the Department of Justice recently announced that it will interpret Title VII to protect gender identity from discrimination based on sex. In a December 15, 2014 memorandum, Attorney General Eric Holder explained that “the best reading of Title VII’s prohibition on sex discrimination is that it encompasses discrimination based on gender identity, including transgender status.” Even though the Department of Justice cannot bring suit against private employers, this new policy is another example of Title VII’s continued expansion to protect transgender people in the workplace.
Congress continues to reject legislative expansion of transgender rights in the workplace, despite executive and agency actions to do so. ENDA is a proposed law that would add sexual orientation and gender identity to Title VII’s list of groups protected from employment discrimination. This bill has been introduced in all but one Congressional session since 1994, but has never passed both houses of Congress. The current incarnation of ENDA passed the Senate in November 2013, but the House never approved it. Several groups advocating for ENDA, including the American Civil Liberties Union and Lambda Legal, withdrew support from the bill when Congress added a broad religious exemption to the measure. There was a last ditch effort to pass ENDA through the House by tacking the law onto the National Defense Authorization Act, which provides funding for the Department of Defense and national security programs. However, the House Rules Committee ultimately voted to keep ENDA off the calendar during the last Congressional session.
Change is undoubtedly afoot for transgender employment rights in the wake of Macy v. Holder and through the EEOC’s strategic enforcement, interpretation, and litigation. Federal courts, the administration and federal agencies are shaping the future of employment discrimination law, and 2015 will undoubtedly bring additional developments to this emerging area as cases move to the appellate courts and final rules are released by agencies. The goal of the EEOC through its case filings is to push the issue through the federal courts toward the United States Supreme Court. Given ENDA’s demise in the 113th Congress, the fate of transgender rights in the workplace are currently in the hands of the judiciary and the executive branch.