Most of us know that under Title VII of the Civil Rights Act sex discrimination in the workplace is illegal. What about discrimination based on sexual orientation, gender identity or status as a transgender? The Emplawyerologist will be covering different aspects of this topic over the next few weeks. We’ll start this week with an overview –after the jump, of course!
Would it surprise you to hear that federal law contains no express language prohibiting these types of discrimination. How can that be? Isn’t there a law pending that is designed to address these very issues? Yes. You are probably thinking of the Employment Non-Discrimination Act, (ENDA) which has been introduced in almost every Congress in some form or another since 1994. ENDA would make employment discrimination based on sexual orientation or gender identity illegal and would apply to employers with 15 or more employees. While there is significant support for ENDA, it has not been passed at this time.
Wait a minute. Isn’t the purpose of anti-discrimination laws to protect those who need protection? On the flip side, does that mean that you as an employer do not have to concern yourself with preventing this type of discrimination? Absolutely not! First, note what I said: federal law contains no express prohibitions in this area.
So is gender identity/transgender discrimination illegal or not? It depends on who you ask. Even so you should probably act as though it is. Now I imagine at least one of you is scratching your head, saying “Huh?” Let me explain.
Title VII prohibits discrimination “because of sex”, but says nothing about sexual orientation, sexual/gender identity or transgender status–and not all courts will read that protection into the “because of sex” provision. The US Supreme Court has twice declined to rule on the issue. However, the EEOC, in connection with the case Macy v. Holder took the position that claims based on “gender identity, change of sex, and/or transgender status are cognizable sex discrimination claim under Title VII. This ruling, while not binding on courts, is binding on all 53 EEOC offices. Charges of discrimination based on gender identity, change of sex and/or transgender status must be processed and treated as any other charge of discrimination.
On September 25, 2014, the EEOC filed two lawsuits on behalf of employees who had undergone gender changes from male to female and whose employees fired them shortly thereafter. These are the first EEOC lawsuits of this kind. In the first case, EEOC v. R.G. & G.R. Harris Funeral Homes Inc the Detroit-based funeral home fired a funeral director/embalmer two weeks after she told her employer that she was transitioning from male to female and would start dressing accordingly. The funeral home told her what she was “proposing to do” was “unacceptable”. Similarly in EEOC v. Lakeland Eye Clinic, the Miami-based employer fired an employee after she advised that she intended to start presenting as a woman. These cases are part of the EEOC’s Strategic Enforcement Plan (SEP) that it it adopted in December 2012, which includes “coverage of lesbian, gay, bisexual and transgender under Title VII’s sex discrimination provisions as the may apply” as an enforcement priority. This is the EEOC’s way of telling employers that it means business.
While the EEOC’s position is not binding on the courts, the 6th and 11th circuits, covering Alabama, Florida, Georgia, Kentucky, Michigan, Ohio and Tennessee) have ruled that discrimination based on transgender status violates Title VII and the Equal Protection Clause of the 14th Amendment. Other circuits, however, do not agree. The 7th and 8th circuits have ruled against transgender employees. While some circuits, such as the First, have ruled in favor of transgenders the issue at hand was not Title VII and was not an employment matter, so, to minimize confusion, I am not including those cases here.
The courts that have ruled in favor of extending Title VII’s protections to sexual orientation and gender identity have relied upon the 1989 US Supreme Court case, Price Waterhouse v. Hopkins 429 US 228. While that case had nothing to do with gender identity or sexual orientation, it essentially held that Title VII’s protection against sex discrimination could extend to someone receiving adverse treatment by an employer based on his or her non-conformance to gender stereotypes. Again, though, not all courts have agreed to extend this reasoning to discrimination based on sexual orientation or gender identity.
OK, so we know that at this moment, no federal law expressly forbids employment discrimination based on sexual orientation or gender identity. We also know that the US Supreme Court has not ruled on the issue. We also, know, however, that the EEOC has made this issue a priority and, along with some courts takes the position that Title VII nonetheless applies. What does that mean for you as employers? It means that if you ignore this issue you do so at your own peril. What should you do then? I will cover that in an upcoming post. Meanwhile, come back next week so we can talk about what some of the states and localities are doing to address this subject. See you then.
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Disclaimer: This post’s contents are for informational purposes only, are not legal advice and do not create an attorney-client relationship. Always consult with competent local employment counsel on any issues discussed here.
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