EEOC LOCKS IN ON TRANSGENDER DISCRIMINATION

Recent lawsuits filed by the EEOC related to transgender discrimination illustrate what is a growing focus of the government and enforcement agencies. Two recent cases in particular serve as the tipping point for collective efforts to extend coverage to individuals on the basis of gender identity and sexual orientation. EEOC v. R.G. & G.R. Harris Funeral Homes, Inc. involves the termination of a transgender funeral director after informing her employer that she was undergoing a gender transition and would subsequently present herself in clothing more consistent with her gender identity.  In response to her termination, the EEOC filed suit against the funeral home stating that such alleged behavior violates Title VII of the Civil Rights Act of 1964 which prohibits sex discrimination, including that based on gender stereotyping. That same day, the EEOC also filed suit against the Lakeland Eye Clinic for violating Title VII by firing an employee because she was transgender and did not conform to the employer’s gender-based expectations when she began to present as a woman. These lawsuits follow the 2012 case of Macy v. Holder in which the EEOC ruled that employment discrimination against an employee on the basis of their gender identity is discrimination on the basis of sex, and is therefore a direct violation of Title VII.

Recent regulatory actions have extended the civil rights protections of individuals beyond enforcement of sex and race/ethnicity as protected classes. President Obama’s Executive Order 13672 prohibits federal contractors from discriminating in employment based on gender identity and sexual orientation. This extension of civil rights protections grants federal agencies further ground for enforcement of non-discrimination given that gender identity and sexual orientation are legally defined as protected classes, not having to rely on sex as a catch-all for all gender, sex, and sexual orientation matters. Following the executive order, Directive 2014-02 was released by OFCCP, stating that gender identity and transgender status are covered by the same protections as sex and race/ethnicity  under E.O. 11246. Given the shared focus across agencies, we expect to see more enforcement related to transgender status and other gender identity and sexual orientation discrimination allegations.

By Jana Garman, M.A., and Brittany Dian, M.S., Analyst at DCI Consulting Group

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