Tag: Transgender

EEOC Sues Florida and Michigan Companies for Transgender Discrimination

McBrayer NEW logo 1-10-13

The Equal Employment Opportunity Commission (“EEOC”) has just filed suit against two companies for alleged discrimination against transgendered employees. The suits were filed separately in Florida and Michigan, against Lakeland Eye Clinic and G.R. Harris Funeral Homes, Inc., respectively. In both cases, employees alleged that they were fired after they disclosed they were undergoing gender transitions.

Title VII does not specifically protect against transgendered persons. In 2012, however, in Macy v. Dep’t of Justice, EEOC Appeal No. 0120120821 (April 20, 2012), the EEOC ruled that employment discrimination against employees because they are transgender, because of gender identity, and/or because they have transitioned (or intend to transition) is discrimination based on sex, and thus violates Title VII.

The EEOC identified “coverage of lesbian, gay, bisexual and transgender individuals under Title VII’s sex discrimination provisions” as one of their top enforcement priorities in its 2012 Strategic Enforcement Plan. Thus, these suits should not be surprising. Earlier this year, President Obama also issued an Executive Order prohibiting federal contractors from discrimination against lesbian, gay, bisexual and transgender workers.

In light of the recent emphasis on the protection of these individuals, employers should take extra precautions to ensure that no discriminatory practices are in force in the workplace. Further, all adverse employment decisions should be properly documented and managers and supervisors should be properly trained about what to do should a discrimination-related issue arises.

© 2014 by McBrayer, McGinnis, Leslie & Kirkland, PLLC. All rights reserved.
ARTICLE BY

Benjamin L. Riddle
OF
McBrayer, McGinnis, Leslie and Kirkland, PLLC

How The White House’s Endorsement of Same-Sex Marriage Affects Employment Law

Recently Anjali Chavan of Dinsmore & Shohl LLP had an article regarding the White House’s Endorsement of Same-Sex Marriage, featured in The National Law Review:

On May 9, 2012, President Barack Obama became the first sitting U.S. President to affirm his belief that same-sex couples should be able to get married. Weeks later, the First Circuit Court of Appeals declared a portion of the Defense of Marriage Act (“DOMA”) unconstitutional.1 These announcements are just two of many events that have shaped the current landscape in this country with respect to the rights of lesbian, gay, bisexual, and transgender (“LGBT”) Americans.

As LGBT issues are being placed at the forefront of American politics, employers would do well to pay attention, as these changes may necessitate changing employment policies, educating staff, and potentially defending against employment lawsuits for previously unchartered claims, including discrimination based upon sexual orientation and gender identity or expression.

On June 12, the U.S. Senate Health, Education, Labor and Pension Committee (“HELP Committee”) is set to consider the Employment Non-Discrimination Act (“ENDA”). ENDA seeks to expand the protections of Title VII to cover sexual orientation and gender identity and will prohibit discrimination in hiring and employment by nonreligious employers with at least 15 employees.

ENDA will be a federal mandate proscribing any discrimination based on sexual orientation or gender identity by both public and private employers—thereby bringing employees living in states without such protections like Ohio,2 Kentucky,3Pennsylvania,4 and West Virginia,5 under the umbrella of federal protection.

The Sixth Circuit Court of Appeals has found that Title VII protects transgender employees—holding that discriminating against employees who do not identify with their gender, act like members in their gender, or conform with sexual stereotypes is a form of sex discrimination violates Title VII. Barnes v. City of Cincinnati, 401 F.3d 729 (6th Cir. 2005); Smith v. City of Salem, 378 F.3d 566 (6th Cir. 2004).

Further underscoring the shifting landscape of LGBT rights was the Equal Employment Opportunity Commission’s (“EEOC”) recent ruling in Macy v. Holder, expanding the prohibition against sex discrimination of Title VII to cover transgender workers.

In Macy v. Holder, the EEOC held that Mia Macy’s complaint of discrimination based on gender identity, change of sex, and/or transgender status can be brought under Title VII. Macy, a former police detective in Phoenix, Arizona, relocated to San Francisco and applied for an open position at the Bureau of Alcohol, Tobacco, Firearms and Explosives (“Agency”) for which she was qualified. Macy originally applied for the position as a man and interviewed with the Director as a man. Macy asserted that the Director told her on two separate occasions that she would have the position pending completion of a background check. A few months after her original application, Macy informed the Agency that she was beginning the process of transitioning from male to female. After the Agency received notice of Macy’s change of name and gender, the agency contacted Macy and told her the position was no longer available due to lack of funding. Macy later discovered that the Agency filled this position with another person.

The EEOC found that charges of discrimination based on transgender status or gender identity are cognizable under Title VII’s sex discrimination prohibition and any such claims must be processed by the EEOC.

That Title VII’s prohibition on sex discrimination proscribes gender discrimination, and not just discrimination based on biological sex, is important. If Title VII proscribed only discrimination on the basis of biological sex, the only prohibited gender-based disparate treatment would be when an employer prefers a man over a woman, or vice versa. But the statute’s protections sweep far broader than that, in part because “gender” encompasses not only a person’s biological sex but also the cultural and social aspects associated with masculinity and femininity.

* * *

[G]ender discrimination occurs any time an employer treats an employee differently for failing to conform to any gender-based expectations or norms.

The growing trend in the United States reveals that employment law is changing and adapting to provide a more inclusive environment for LGBT employees. Even though your state or federal circuit court may not recognize certain protections for LGBT individuals, many cities and counties around the country do have such protections in their local ordinances. As employers are navigating these issues in hiring, promoting, and firing, they should be cognizant of the local, state, and federal laws that may be at play. Employers must take the time to recognize and understand these changes, and consider revising their employee manuals and employment policies to comply with these changes.

(1) Massachusetts v. U.S. Dep’t of HHS, et al., Case Nos. 10-2204, 10-2207, & 10-2214, 2012 U.S. App. LEXIS 10950, (1st Cir. May 31, 2012) (affirming the lower court’s holding finding Section 3 of DOMA which defines marriage for federal purposes as a union between a man and a women, to be an unconstitutional encroachment on the power to define marriage granted to the states by the Tenth Amendment).
(2) Ohio prohibits discrimination by public employers based on sexual orientation.
(3) Kentucky prohibits discrimination by public employers based on sexual orientation and gender identity.
(4) Pennsylvania prohibits discrimination by public employers based on sexual orientation and gender identity.
(5) West Virginia provides no protections for LGBT employees.

© 2012 Dinsmore & Shohl LLP

Connecticut Prohibits Discrimination Based on Gender Identity

Recently posted in the National Law Review an article by Alan M. Koral, Michelle D. Velásquez, Laura Sack, Laura Sack, Lyle S. Zuckerman and Roy P. Salins of Vedder Price P.C. regarding Connecticut employers with three or more employees will be prohibited from discriminating against an employee or applicant based on gender identity or expression.

Effective October 1, 2011, Connecticut employers with three or more employees will be prohibited from discriminating against an employee or applicant based on gender identity or expression. Connecticut lawmakers defined “Gender identity or expression” as “a person’s gender-related identity, appearance or behavior, whether or not that gender-related identity, appearance or behavior is different from that traditionally associated with the person’s physiology or assigned sex at birth.” Evidence that may establish gender-related identity includes assertion of the gender-related identity by the individual, care or treatment of the gender-related identity, evidence that the gender-related identity is not being asserted for an improper purpose, medical history, or other evidence that the gender-related identity is a sincerely held element of a person’s core identity. It is clear that the law protects transgendered people who are not undergoing gender reassignment surgery, and who do not intend to do so, as well as those who have completed such surgery or who are in the process of doing so.

The new law adds gender identity or expression—a status also commonly referred to as “transgendered”—as a protected class, affording that class similar rights and remedies as other classes such as race and gender protected under Connecticut law. By doing so, Connecticut joins New Jersey and New York City, both of which prohibit gender identity discrimination.

The one notable exception to the new law’s prohibition of discrimination based on gender identity or expression is the exemption of religious corporations or entities “with respect to the employment of individuals to perform work connected with the carrying on by such corporation . . . of its activities, or with respect to matters of discipline, faith, internal organization or ecclesiastical rule, custom or law” established by the religious entity.

Connecticut-based employers are advised to add gender identity to their EEO policies and literature and to be sure to include gender identity issues in their EEO training, especially training for managers and supervisors. Other employers who have employees in Connecticut (or New Jersey or New York City) should consider revising their policies companywide to include nondiscrimination based on gender identity and to include the new law’s requirements in their training.

© 2011 Vedder Price P.C.