According to the EEOC, coverage of lesbian, gay, bisexual and transgender individuals under Title VII’s sex discrimination provisions is “an enforcement priority.” This enforcement priority is “consistent with positions the EEOC has taken in recent years regarding the intersection of LGBT-related discrimination and Title VII’s prohibition on sex discrimination.”
True to its word, the EEOC is vigorously pursuing employers on a number of such cases. In turn, the number of charges of discrimination and lawsuits regarding sexual orientation and identity is rapidly escalating.
This HR Law Insider edition helps employers understand and comply with emerging gender issues. The two transgender cases discussed below — one involving a funeral home embalmer and the other a fireman, with each employee transitioning from male to female — provide an excellent guide for employers as to how to treat (or not to treat) transitioning employees or other employees with gender issues.
THE EEOC SUES ON BEHALF OF A TRANSGENDER EMBALMER AND WINS ROUND ONE IN COURT
The EEOC recently sued a funeral home on behalf of its embalmer asserting that the funeral home’s decision to fire the employee was motivated by sex-based considerations, in that the funeral home fired the employee because she is transgender, because of her transition from male to female, and because she did not conform to the defendant employer’s sex- or gender-based preferences, expectations, or stereotypes. The EEOC also asserted that the funeral home engaged in an unlawful employment practice in violation of Title VII by providing a clothing allowance/work clothes to male employees but failing to provide such assistance to female employees because of sex.
Last month, a federal court decided that the case could go forward despite the funeral home’s argument that transgender status is not protected under Title VII: “Even though transgender/transsexual status is currently not a protected class under Title VII, Title VII nevertheless “protects transsexual persons from discrimination for failing to act in accordance and/or identify with their perceived sex or gender.”
A TRANSITIONING FIREMAN IS ALSO PROTECTED UNDER TITLE VII
The decision in the embalmer case relied heavily on a 2004 lawsuit involving a transgender fireman. In Smith v. City of Salem, plaintiff Jimmie Smith was born a male and had been employed by the Salem Fire Department for seven years without any negative incidents. After being diagnosed with Gender Identity Disorder, Smith began expressing a more feminine appearance on a full-time basis, including while at work. Smith’s co-workers began questioning him about his appearance and commenting that his appearance and mannerisms were not “masculine enough.” Smith then advised his supervisor about his Gender Identity Disorder diagnosis and informed him that his treatment would eventually include “complete physical transformation from male to female.”
The news was not well-received by Smith’s employer. Smith’s superiors met to devise a plan to terminate Smith, which included requiring him to undergo three separate psychological evaluations in the hope that he would quit.
Smith lost before the lower court, but a federal court of appeals reversed and ruled in his favor:
“His complaint sets forth the conduct and mannerisms which, he alleges, did not conform with his employers’ and co-workers’ sex stereotypes of how a man should look and behave. Smith’s complaint states that, after being diagnosed with GID, he began to express a more feminine appearance and manner on a regular basis, including at work. The complaint states that his co-workers began commenting on his appearance and mannerisms as not being masculine enough; and that his supervisors at the Fire Department and other municipal agents knew about this allegedly unmasculine conduct and appearance. The complaint then describes a high-level meeting among Smith’s supervisors and other municipal officials regarding his employment. Defendants allegedly schemed to compel Smith’s resignation by forcing him to undergo multiple psychological evaluations of his gender non-conforming behavior.
The complaint makes clear that these meetings took place soon after Smith assumed a more feminine appearance and manner and after his conversation about this with Eastek. In addition, the complaint alleges that Smith was suspended for twenty-four hours for allegedly violating an unenacted municipal policy, and that the suspension was ordered in retaliation for his pursuing legal remedies after he had been informed about Defendants’ plan to intimidate him into resigning. In short, Smith claims that the discrimination he experienced was based on his failure to conform to sex stereotypes by expressing less masculine, and more feminine mannerisms and appearance.”
The Smith court explained that “[h]aving alleged that his failure to conform to sex stereotypes concerning how a man should look and behave was the driving force behind Defendants’ actions, Smith has sufficiently pleaded claims of sex stereotyping and gender discrimination.”
Whether in the macho world of firemen or the macabre world of embalmers, businesses must comply with Title VII. This includes treating transgender and similar employees in a non-discriminatory manner. Failure to do so may give rise to an EEOC lawsuit; expect such lawsuits to accelerate and be pursued intensely by an EEOC, who has made the pursuit of such cases a “priority.”
It is difficult for many non-transgender people to understand how transgender individuals think and what they are going through. For a brief glimpse of one person’s journey and perspective, here is a portion of Diane Sawyer’s interview of Bruce Jenner: