April showers bring May flowers, but last month also brought a flurry of Equal Employment Opportunity Commission (“EEOC”) discrimination enforcement directed to the protection of transgender employees under Title VII.
First, a bit of background: transgender is generally defined as a person who identifies with a gender other than the one they were born with. While there is no federal law that provides explicit protection for transgender individuals, the legal landscape has changed over the last couple of years such that transgender employees are asserting sex based discrimination claims under Title VII.
Back in April 2012, the EEOC solidified and confirmed its intention to protect transgender employees under Title VII of the Civil Rights Act. The EEOC explained by stating that the “commission hereby clarifies that claims of discrimination based on transgender status, also referred to as claims of discrimination based on gender identity, are cognizable under Title VII sex discrimination prohibition . . . .” As a result, the EEOC, in 2013, began tracking sex discrimination charges based on gender identity/transgender status.
Recently, here in Florida, the EEOC settled the first transgender discrimination lawsuit brought by the EEOC. The EEOC had sued Lakeland Eye Clinic after Brandi Branson’s position had been eliminated. When Ms. Branson’s employment at the clinic began, she identified herself as male and dressed in traditional male clothing. After Ms. Branson began to wear makeup and traditional female clothing to work, she was confronted over her appearance and later most of the doctors at the clinic stopped referring eye patients to her. The settlement obtained by the EEOC requires payment of $150,000 to Ms. Branson.
Additionally, there has been other recent news around the country regarding transgender discrimination cases:
On March 31st, the United States Department of Justice filed a Title VII lawsuit naming Southeastern Oklahoma State University and the Regional University System of Oklahoma over the failure of the University to award tenure to a transgender woman.
In an April 1st Order, the EEOC ordered the Department of the Army to pay damages to a transgender employee whom it barred from a restroom matching her new identity and referred to her by her previous gender.
On April 13th, a transgender man sued a finance company after he was called into a meeting, shown the dress code policy and asked to sign a form that he would comply with the dress code for female employees.
The takeaway from this recent activity is that employers need to assume that a transgender employee will be able to sue under Title VII if they are discriminated against or harassed based on their lack of compliance with traditional gender norms.
As Federal Judge Sean Cox ruled this week, in an opinion permitting a transgender discrimination case to move forward, federal law doesn’t specifically protect a transgender person, but there is legal precedent that protects people who are fired for failing to conform to a gender-based expectation.
Dori K. Stibolt is an attorney with the law firm of Fox Rothschild LLP. She defends and counsels management in labor and employment litigation matters pertaining to wage and overtime claims, discrimination, harassment, retaliation, leave/restraint, and whistle-blower claims.
