EEOC Takes an Aggressive Stance Regarding Discrimination Against Transgender Employees

By: Megan J. Muoio, October 8, 2014

The Equal Employment Opportunity Commission (EEOC) continued its recent aggressive advocacy on behalf of employees by filing suit against two employers, claiming that the employers terminated employees because they were transgender. The suits are the first lawsuits ever filed by the EEOC alleging sex discrimination against transgender individuals under Title VII of the Civil Rights Action of 1964. These lawsuits comport with the EEOC’s Strategic Enforcement Plan for 2012, which expressly seeks to expand lesbian, gay, bisexual and transgender coverage under Title VII sex discrimination provisions.

The first case, EEOC v. R.G. & G.R. Harris Funeral Homes, Inc., was brought in the United States District Court for the Eastern District of Michigan, Southern Division. In the complaint, the EEOC alleges that employee Amiee Stephens was employed by the defendant as a funeral director/embalmer since 2007. She was terminated in 2013 when she disclosed to the defendant that she would be transitioning from male to female. The defendant allegedly stated that the reason she was fired was because her proposed transition was “unacceptable.”

The second case, EEOC v. Lakeland Eye Clinic, P.A., was brought in the United States District Court for the Middle District of Florida, Tampa Division. In the complaint, the EEOC alleges that the defendant hired Brandi M. Branson (who then presented as male) as its Director of Hearing Services in 2010. Sometime in 2011, Branson began presenting as a woman in her clothes and makeup. As a result, the defendant’s other employees ostracized Branson and the defendant stopped referring patients to Branson, effectively destroying her practice. The defendant eventually terminated Branson in June 2011, claiming that it was closing the Hearing Services division. In actuality, the defendant continued the division and replaced Branson with a male employee.

The recent lawsuits are based on the EEOC’s decision in Macy v. Holder, an appeal that was heard and decided by the full Commission in 2012. That case was brought by Mia Macy, an applicant for a position at a crime laboratory operated by the Bureau of Alcohol, Tobacco, and Firearms (ATF). At the time that she first discussed the position with the director of the lab, Macy presented as a man. The director assured Macy that the position was hers and she started the background check procedure to secure the position. Before being officially awarded the job, however, Macy informed the lab that she was in the process of transitioning from male to female. Shortly after, Macy was informed that the position had been eliminated due to federal budget restrictions.

Macy then filed a formal complaint with the EEOC in which she stated the basis for her complaint was “gender identity” and “sex stereotyping.” The EEOC accepted the complaint on the basis of sex discrimination but informed her that the EEOC was not empowered to address Macy’s claims for gender identity and sex stereotyping. Macy appealed the determination and was successful in forcing the EEOC to accept her claims regarding discrimination based on her status as a transgender individual. In determining the appeal, the full EEOC held that discrimination based on gender identity – specifically, one’s status as a transgender individual – falls under the category of discrimination on the basis of sex under Title VII of the Civil Rights Act of 1964. The EEOC cited decisions from the Sixth and Eleventh Circuit Courts of Appeal, which have held that sex discrimination encompasses not only discrimination on the basis of biological sex, but also stereotyping based on gender expectations or norms. In this manner, discrimination against an individual who is transgender is discrimination related to the individual’s sex, whether the discrimination is based on the employee’s non-stereotypical gender expression or the employee’s transition from one gender to another.

In attempting to broaden the ruling of Macy v. Holder, which applied to federal employees, to all employees covered by Title VII, the EEOC is signaling to employers that it will lead the vanguard in pursing the rights of transgender individuals. Issues surrounding transgender individuals in the workplace are increasingly prevalent and the pace of litigation over transgender employee rights is only going to increase as this issue continues to come to prominence. It is likely that we will see an increase in claims made to the EEOC and to local agencies, as well as new state and local laws and regulations protecting transgender employees. Employers would be wise to remain current on these changes and be prepared to review their employment policies, procedures, and training in light of new developments as they occur.