Law: A New Enforcement Priority

EEOC Targets Gender Discrimination Against Transgender Individuals

By KARINA L. SCHRENGOHST, Esq.

Discrimination based on transgender status or gender identity is a developing area of employment law.

Some states, including Massachusetts, have recognized gender identity as a protected class under state anti-discrimination laws. Federal courts are increasingly finding that laws prohibiting gender discrimination apply to transgender individuals. In the past year, the Equal Employment Opportunity Commission (EEOC), the federal administrative agency responsible for enforcing Title VII of the Civil Rights Act of 1964, the federal law prohibiting, among other things, sex (gender) discrimination in the workplace, has filed the first three lawsuits ever filed by the EEOC alleging sex discrimination against a transgender individual.

The EEOC has identified sex discrimination against lesbian, gay, bisexual, and transgender individuals as an enforcement priority. Citing a 2011 UCLA study, Mary Jo O’Neill, regional attorney for the EEOC Phoenix District Office, stated that “78% of transgender employees nationwide reported harassment or mistreatment at work because of their gender identity.”

On Sept. 25, 2014, the EEOC filed the first lawsuit alleging that a transgender employee of a Detroit funeral home was fired two weeks after telling her employer that she was transitioning from male to female. (See EEOC v. R.G. & G.R. Harris Funeral Homes, Inc., Civ. No. 2:14-cv-13710.) That same day, the EEOC filed a second lawsuit alleging that a transgender employee of a Florida eye clinic was fired after she began to present at work as a woman and informed her employer she was transitioning from male to female; in April 2015, this case was settled for $150,000. (See EEOC v. Lakeland Eye Clinic, P.A., Civ. No. 8:14-cv-2421.)

Most recently, early last month, the EEOC filed a third lawsuit alleging that Britney Austin, a long-term and satisfactorily performing transgender employee, was subjected to sex discrimination by her employer, Deluxe Financial Services Corp., a check-printing and financial-services corporation. (See EEOC v. Deluxe Financial Services Inc., Civ. No. 0:15-cv-02646.)

Specifically, the EEOC alleges that, after Austin began to present at work as a woman and told her supervisors that she was transgender, her employer refused to let her use the women’s restroom. In addition, it is alleged that Austin’s supervisors and co-workers subjected her to a hostile work environment, including making derogatory statements and intentionally referring to her by the wrong gender pronoun.

Commenting on this case, Rayford Irvin, district director for the EEOC’s Phoenix District Office, noted that “a long-term, well-respected employee should not be rewarded for her years of dedicated service by being forced to face the indignity and danger of using a restroom inconsistent with her gender identity, simply because a company’s management subscribes to sex stereotypes and believes co-workers may feel uncomfortable.”

This case is similar to the most recent EEOC decision involving sex discrimination against a transgender individual. On April 1, 2015, the EEOC ruled that denying employees use of a restroom consistent with their gender identity and subjecting them to intentional use of the wrong gender pronouns constitutes sex discrimination in violation of Title VII. (See Lusardi v. McHugh, Appeal No. 0120133395.)

This litigation follows the landmark case of Macy v. Bureau of Alcohol, Tobacco, Firearms and Explosives. Mia Macy, a transgender woman, filed a complaint against ATF alleging employment discrimination in violation of Title VII.

Macy applied for a job as a ballistics technician with ATF. After a telephone interview, Macy was informed that she would be hired if she passed the background check. However, after learning that Macy was transitioning from male to female, ATF informed her that the position was no longer available due to budget cuts. Macy later learned that ATF hired someone else for the position.

On April 20, 2012, the EEOC, for the first time, concluded that discrimination against a transgender individual because that person is transgender is gender discrimination prohibited by Title VII. The EEOC stated that gender discrimination occurs when “an employer discriminates against an employee because the individual has expressed his or her gender in a non-stereotypical fashion, because the employer is uncomfortable with the fact that the person has transitioned or is in the process of transitioning from one gender to another, or because the employer simply does not like that the person is identifying as a transgender person.” (See Macy v. Department of Justice, Appeal No. 012012082.)

Following the EEOC’s decision, the Department of Justice investigated and, on July 8, 2013, found that ATF discriminated against Macy based on her transgender status.

The year before Macy filed her complaint with the EEOC, Massachusetts became the 16th state to prohibit discrimination on the basis of gender identity. An Act Relative to Gender Identity (also known as the transgender equal-rights law), which was effective July 1, 2012, prohibits private employers with six or more employees from discriminating against applicants and employees on the basis of gender identity. Under Massachusetts law, gender identity is defined as “a person’s gender-related identity, appearance, or behavior, whether or not that gender-related identity, appearance, or behavior is different from that traditionally associated with the person’s physiology or assigned sex at birth.”

Massachusetts state and federal law prohibit discrimination based on gender, transgender status, and gender identity. This means that employers may not make decisions regarding hiring, promotion, termination, and other terms and conditions of employment based on an applicant’s or an employee’s transgender status, gender identity, or perceived non-conformity with gender stereotypes.

To reduce the risk of litigation, employers should ensure that their policies and practices are compliant with state and federal law. Also, employers should educate employees that discrimination and harassment based on transgender status and gender identity is unlawful and will not be tolerated in the workplace.

In addition to ensuring that policies related to discrimination and harassment are compliant with state and federal law, as a proactive measure, employers should consider implementing written policies and guidelines for managing gender transition, which address use of gender-specific facilities such as bathrooms and locker rooms, dress code and appearance standards, confidentiality and privacy rights, and updating personnel records. Employers should also consider working with transgender employees to develop individual plans for workplace transitions.

Finally, employers should train their managers and supervisors on how to respond when employees approach them regarding gender transition and how to address questions and reactions from co-workers. Because this is a developing area of the law, employers would be wise to consult with their employment-law counsel when issues arise in the workplace concerning transgender employees.

Karina L. Schrengohst, Esq. is an attorney at Royal LLP, a woman-owned, boutique, management-side labor and employment law firm. Royal LLP is a certified women’s business enterprise with the Massachusetts Supplier Diversity Office, the National Assoc. of Minority and Women Owned Law Firms, and the Women’s Business Enterprise National Council; (413) 586-2288; [email protected]