EEOC On Warpath Against Transgender Discrimination

In a recent alert, I summarized the results of Chavez v. Credit Nation Auto Sales, a Title VII case decided by the 11th Circuit on January 14, 2016 [2016 U.S. App. LEXIS 598].  I also noted a prior 11th Circuit 14th Amendment ruling in Glenn v. Bumbry (2011) [663 F.3d 1312].  Both cases support discrimination against transgender females.  Thinking it is possible that these were both one off rulings involving on the 11th Circuit, I dug further into the issue and found four transgender cases involving the EEOC.  Each one was a Title VII claim.

In a press release dated 1/21/16, the EEOC reported a $115,000 settlement with Deluxe Financial Services (see http://www.eeoc.gov/eeoc/newsroom/release/1-21-16.cfm) as part of a two-year consent decree approved on 1/20/16.  The charges were that Britney Austin, who converted from male to female, could not use the women’s restroom and that supervisors and co-workers subjected her to a hostile work environment.  Interestingly, Austin herself intervened in the case filing an ADA complaint claiming gender dysphoria.  The EEOC played no role in this part of the case.

In a press release dated 4/9/2015, the EEOC reported a $150,000 settlement with Lakeland Eye Clinic for firing a transgender female employee, the Director of Hearing Services, when she presented as a woman (See http://www.eeoc.gov/eeoc/newsroom/release/4-13-15.cfm).  The eye clinic also agreed to implement a training program for managers and employees regarding transgender and gender stereotype discrimination.

On 9/24/14, the EEOC sued R.G. & G.R. Funeral Homes alleging that it discriminated against Aimee Stephens, a Funeral Director/Embalmer because “she was transitioning from male to female, and/or because she did not conform to the employer's gender-based expectations, preferences, or stereotypes in violation of Title VII.”  Interestingly, the district court judge (Eastern District of Michigan) noted "even though transgendered/transsexual status is currently not a protected class under Title VII, Title VII nevertheless 'protects transsexuals from discrimination for failing to act in accordance and/or identify with their perceived sex or gender.”

And in a press release dated 9/17/15, the EEOC announced that the Eastern District Court of Louisiana granted the EEOC’s motion to join a suit against First Tower Loan, LLC when a transgender male was fired as a manager-trainee “because he is transgender, and/or because he did not conform to the employer's gender-based expectations, preferences or stereotypes.” (See http://www.eeoc.gov/eeoc/newsroom/release/9-17-15c.cfm).  The termination in this case was based, in part, when Tristan Broussard, submitted a license, as required, and a manager noticed his sex was listed as F for female.  He was fired when he refused to sign a document requiring him to adhere to the proper dress code for females.

The moral of the story is clear --- the EEOC will attack all attempts to discriminate against transgender employees.  Obviously, employers need to adopt appropriate policies to address this issues, and train their managers and employees accordingly.

By Art Gutman, Ph.D., Professor, Florida Institute of Technology

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