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EEOC’s Litigation on Behalf of Transgender Employees Reveals Reach (and Limits) of Federal Anti-Discrimination Law

In September 2014, the EEOC filed its first employment discrimination lawsuits on behalf of transgender employees. (Rachel Stroup previously wrote about those suits, and related moves by the federal government to recognize antidiscrimination protection for transgender individuals, here.) The first of those suits, against an eye clinic, has settled; the clinic agreed to pay the employee $150,000 as well as to take specified proactive actions to avoid discrimination in the future. The second, EEOC v. R.G. & G.R. Harris Funeral Homes, Inc., is a suit pending in the Eastern District of Michigan on behalf of a transgender employee, Amiee Stephens, whose employer, a funeral home, allegedly fired her when she informed it that she was undergoing a gender transition from male to female and intended to dress in appropriate business attire as a woman. That case has just survived the defendant’s motion to dismiss. The Court’s reasoning should encourage employees who believe that they are experiencing discrimination due to transgender status to stand up for their rights, but it also reveals continuing gaps in federal discrimination law that Congress should act to remedy.

The funeral home moved to dismiss the suit on the grounds that Title VII does not protect against discrimination based on transgender status. In his opinion and order denying the motion to dismiss, Judge Sean F. Cox agreed that transgender status, like sexual orientation, “is currently not a protected class under Title VII.” Accordingly, if the EEOC’s complaint had alleged that the Funeral Home fired the employee based solely upon her status as a transgender person, it would have failed to state a claim and would have been subject to dismissal. However, because the complaint also asserted a claim of gender discrimination—arguing that the funeral home fired the employee because she “did not conform to [its] sex- or gender-based preferences, expectations, and stereotypes”—the complaint did state a claim. This holding illustrates the importance of careful pleading in order to ensure that a claim under Title VII will survive a motion to dismiss. It also seems clearly right that where an employer fires someone for acting in a way that does not conform with that person’s perceived gender, that person should have a claim for gender discrimination. In other words, being transgender does not prevent someone from bringing a sex-stereotyping gender-discrimination claim under Title VII, “just like anyone else.”

However, the Court still rejected what it saw as the EEOC’s attempt to “seek a more expansive interpretation of sex under Title VII that would include transgender persons as a protected class.” As the EEOC’s case on behalf of Ms. Stephens moves forward, it will have to demonstrate at every stage of the case that the funeral home’s discrimination was based on her failure to conform to sex stereotypes and not based on her transgender identity. These are simply not hairs that we should be splitting in the federal courts at this stage of history. Congress has the power to clarify that discrimination based on sexual orientation or transgender identity violates Title VII by passing the Employment Non-Discrimination Act (ENDA) but so far has failed to do so.

The employer’s pleadings in support of its motion to dismiss amply demonstrate its—and its lawyer’s—distaste for transgender individuals. As just one example, rather than referring to Ms. Stephens by her last name—as is legal convention—the funeral home’s attorney made the mean-spirited choice to refer to her by her former first name, Anthony, illustrating contempt for her as a litigant and a woman. He further warns:

[I]f the EEOC’s position prevails, neither this Funeral Home nor any business will be able to any longer control how its employees and agents appear to the public. Men will be able to wear dresses, high heels, their hair long, and lip stick, and women will be able to shave their heads, wear men’s suits and ties, and no make-up.

A world in which women do not have to wear makeup is unlikely, in my opinion, to cause the downfall of our civilization. In any case, the argument really misses the point: Ms. Stephens was proposing to dress in an appropriate manner for her gender, and the funeral home allegedly terminated her for it. That should be plainly illegal without the need to draw a difficult distinction between transgender discrimination and sex stereotyping. The funeral home’s pleadings taken on their own illustrate the existence of an animus that Congress should act to outlaw as the basis for adverse actions against qualified and well-performing employees.

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