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The Equal Employment Opportunity Commission (“EEOC”) recently initiated lawsuits against two employers for alleged transgender discrimination.  These are the agency’s first-ever lawsuits involving transgender rights.  These developments are consistent with the position the EEOC adopted in 2012 that transgender discrimination is prohibited under Title VII as a subset of sex discrimination.  Only time will tell if this is the beginning of a trend.

In EEOC v. Lakeland Eye Clinic, the EEOC alleges a medical clinic fired an otherwise strong performing employee who was biologically male but began dressing as a woman and eventually informed the clinic that she was transgender.    In EEOC v. R.G. & G.R. Harris Funeral Homes Inc., a funeral home fired its biologically male funeral Director/Embalmer after she informed the company she was planning to transition from male to female and would soon beginning coming to work dressed as a woman.  In both cases, the EEOC’s theory is that the businesses “discriminated based on sex in violation of Title VII by firing [the employees] because [they are] transgender, because [they were] transitioning from male to female, and/or because [they] did not conform to the employer’s gender-based expectations, preferences, or stereotypes.”

Underpinning the EEOC’s actions is its 2012 decision, Macy v. Holder, involving a male-to-female police officer who applied for a job with the Bureau of Alcohol, Tobacco, Firearms, and Explosives.  In deciding the case, the EEOC held that discrimination based on an individual’s transgender status is equivalent to sex-based discrimination and therefore is prohibited by Title VII.  The EEOC relied on a number of analogous federal court cases to reach its decision in Macy.  It cited Price Waterhouse v. Hopkins, a seminal 1989 Supreme Court case in which a plurality of justices held refusing to promote a woman because she did not dress or act in a feminine manner was unlawful “sex stereotyping” which amounted to sex-based discrimination under Title VII.  It also relied on an Eleventh Circuit case which held discriminating on the basis of gender non-conformity is equivalent to sex-based discrimination under the Equal Protection Clause and a Sixth Circuit case which held transsexuals can allege sex stereotyping claims pursuant to the Hopkins precedent when they are discriminated against for failing to conform to gender norms.

Given these recently filed lawsuits, the EEOC may finally begin to aggressively pursue employers who engage in transgender discrimination.  If the courts side with the EEOC’s position, employers may need to reevaluate their workplace policies and maybe more importantly their unwritten practices.  We will continue to monitor these actions and update you on their status as they make their way through the legal system.

Brody and Associates regularly provides counsel on civil rights issues and employment laws in general.  If we can be of assistance in this area, please contact us at info@brodyandassociates.com or 203.965.0560.