The original guidance on Title VII & LGBT discrimination was published in December 2012. The update, which includes recent cases, settlement, amicus briefs was published on 3/1/16 and may be viewed here. The original goals, as stated in the update, was to establish a Strategic Enforcement Plan (SEP) to include:
"coverage of lesbian, gay, bisexual and transgender individuals under Title VII's sex discrimination provisions, as they may apply" as a top Commission enforcement priority. Consistent with this priority, the Commission's General Counsel formed an LGBT working group that provides advice and input to the Agency's litigators on developing related litigation vehicles. This work group also coordinates internal initiatives and policies, trains internal staff, and conducts outreach with external stakeholders.
It should be noted at the outset that this is not a new issue for DCI. Over the past few years, we have written 11 alerts on this issue and, notably, DCI is on record as joining the “chorus on gender stereotyping”. This update focuses on court cases and settlements reported by the EEOC, as well as pending cases. Some of these cases have been discussed by myself and others in prior alerts. To read any one of these alerts, simply type in the term “transgender” into the search box on the blog site.
THREE RESOLVED CASES
(1). In EEOC v. Deluxe Financial Services Corp ((D. Minn. Civ. No. 0:15-cv-02646-ADM-SER, filed June 4, 2015, settled on January 20, 2016), Deluxe agreed to a $115,000 settlement and a 3-year consent decree to include healthcare benefit for medically necessary care based on transgender status. They also agreed to revise their policies to preventing unlawful sex discrimination, provide employee training relating to unlawful sex-stereotypes, gender-identity, and transgender status. The settlement is based on refusal to allow a transgender female (Brittney Austin) to use the women’s bathroom. She also experienced a hostile harassment.
(2). In EEOC v. Lakeland Eye Clinic, P.A. (M.D. Fla. Civ. No. 8:14-cv-2421-T35 AEP filed Sept. 25, 2014, settled April 9, 2015), the employer agreed to a $150,000 settlement and a 2-year consent decree. The settlement is based on the termination of a transgender female because of a failure to conform to the clinic’s “gender-based expectations, preferences, or stereotypes in violation of Title VII”.
(3) In EEOC v. Boh Bros. Constr. Co. LLC (5th Cir. 11-30770) the EEOC won a jury verdict of $451,000 (reduced to 301,000 based on Title VII limits for compensatory and punitive damages). The ruling was initially overturned by a three-judge panel of the 5th Circuit, but was then overturned by the 5th Circuit en banc ruling by a 10 to 6 majority. This case is reminiscent of Oncale v. Sundowner (1989) (53 US 75)  in that a gay employee in an all-male construction crew (Kerry Wood) was repeatedly harassed by his Supervisor (Chuck Wolfe). The court ruled based on Price Waterhouse v. Hopkins (1989) (490 us 228) that the harassment was based on sex because:
[T]he “"harasser's subjective perception of the victim" and even an employer's "wrong or ill-informed assumptions about its employee may form the basis of a discrimination claim" since "[w]e do not require a plaintiff to prop up his employer's subjective discriminatory animus by proving that it was rooted in some objective truth." The Court then ruled that the Commission had offered sufficient evidence to sustain the jury's verdict that Wolfe harassed Woods because of sex (here, because Wolfe viewed Woods as "not manly enough"), and that Wolfe's harassment of Woods was sufficiently severe or pervasive to create a hostile environment. See 732 F.3d 444 (5th Cir. 2013) (en banc).
FOUR PENDING CASES
(1) In EEOC v. Scott Medical Health Center, P.C., (W.D. Pa., No. 2:16-cv-00225-CB, filed March 1, 2016). The EEOC maintains that a gay male (Dale Baxley) was subjected to same-sex harassment because his immediate supervisor who knew Baxley was gay because of “gender-based expectations, preferences, or stereotypes.” No action was taken after Baxley complained and he resigned after several weeks of further harassment, forming the basis for a constructive discharge charge. The EEOC is seeking injunctive relief, back pay, and compensatory damages.
(2) In EEOC v. Pallet Companies d/b/a IFCO Systems NA, Inc. ("IFCO"), (D. Md., No. 1:16-cv-00595-RDB, filed March 1, 2016), the allegation is that a gay female (Yolanda Boone) was terminated for complaining about harassment. According to the EEOC, “Boone, a lesbian woman, was harassed because of her sexual orientation and/or her non-conformity with the employer's gender-based expectations, preferences, or stereotypes in violation of Title VII.” and “nonconformity with stereotypical female gender norms.” The EEOC is seeking injunctive relief, back pay, and compensatory damages.
(3) In EEOC v. R.G. & G.R. Harris Funeral Homes Inc. (E.D. Mich. Civ. No. 2:14-cv-13710-SFC-DRG, filed Sept. 25, 2014), the allegation is that a funeral director/embalmer (Amiee Stephens) was in transition from male to female. The EEOC defeated a motion to dismiss the case. In rendering the ruling, the court acknowledge that transgender status is not covered by Title VII, but sex stereotypes are. More specifically, the court ruled that “the EEOC had sufficiently pled a sex-stereotyping gender-discrimination claim under Title VII because the Commission alleged that Stephen's failure to conform to sex stereotypes was the driving force behind the funeral home's decision to fire Stephens.”
(4) In Broussard v. First Loan Tower LLC (E.D. La. Civ. No. 2:15-cv-01161-CJB-SS), a case discussed in a recent Alert, 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.” 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.
Finally, in 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], after the EEOC’s most recent press release, the court supported claim of transgender discrimination by a female, as it did in a 14th Amendment ruling in Glenn v. Bumbry (2011) [663 F.3d 1312]., a case that was not discussed in the EEOC’s press release. Both cases, like several of the above cases, have been discussed in recent Alerts/
The moral of the story is that the EEOC (and the OFCCP) will continue to prosecute gender identity cases. Interestingly, the basis for these cases is not the preference itself, but rather stereotypical views and expectations by employers on LGBT applicants and employees. In essence, the regulatory agencies have stepped in to clarify Justice Scalia’s ruling in Oncale, which led many to believe there is no basis for suing based on LGBT status. I will cover why this is so in a follow-up Alert.
 Oncale was a gay male in an all-male off shore drilling company.
By Art Gutman, Ph.D., Professor, Florida Institute of Technology