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What You Should Know about EEOC and the Enforcement Protections for LGBT Workers

By November 26, 2014 Employment Law No Comments

Recent events, including the filing of two EEOC lawsuits on behalf of transgender employees and an amicus brief in the 7th Circuit related to coverage of sexual orientation, have triggered increased interest about protections for lesbian, gay, bisexual and transgender (LGBT) individuals under federal employment-discrimination laws. The information below highlights what you should know about the EEOC’s enforcement efforts in this area.

Overview

The EEOC is responsible for enforcing federal laws that make it illegal to discriminate against a job applicant or an employee because of the person’s race, color, religion, sex (including pregnancy), national origin, age (40 or older), disability or genetic information. These federal laws also prohibit employers from retaliating against workers who oppose discriminatory employment practices – for example, by reporting incidents of sexual harassment to their supervisor or human resources department – or against those who file EEOC charges or cooperate with an EEOC investigation. Also, where these federal laws apply, they protect all workers, regardless of sexual orientation or gender identity.

Employers and employees often have questions about whether discrimination related to LGBT status is prohibited under the laws the EEOC enforces. The Commission’s Strategic Enforcement Plan (SEP), adopted by a bipartisan vote in December of 2012, lists “coverage of lesbian, gay, bisexual and transgender individuals under Title VII’s sex discrimination provisions, as they may apply” as an enforcement priority for FY2013-2016. This enforcement priority is consistent with positions the Commission has taken in recent years regarding the intersection of LGBT-related discrimination and Title VII’s prohibition on sex discrimination.

In 2012, the EEOC held that discrimination against an individual because that person is transgender (also known as gender identity discrimination) is discrimination because of sex and therefore is prohibited under Title VII of the Civil Rights Act of 1964. See Macy v. Department of Justice, EEOC Appeal No. 0120120821 (April 20, 2012). The Commission has also found that discrimination against lesbian, gay, and bisexual individuals based on sex-stereotypes, such as the belief that men should only date women or that women should only marry men, is discrimination on the basis of sex under Title VII. See Veretto v. United States Postal Service, EEOC DOC 0120110873 (July 1, 2011) (accepting Title VII sex discrimination claim alleging that supervisor harassment was motivated by sexual stereotype that men should only marry women); Castello v. United States Postal Service, EEOC DOC 0520110649 (December 20, 2011) (accepting Title VII sex discrimination claim alleging that supervisor harassment was motivated by sexual stereotype that having relationships with men is an essential part of being a woman); Complainant v. Dep’t of Homeland Sec., EEOC DOC 0120110576 (August 20, 2014) (reaffirming prior findings that federal employees discriminated against on the basis of sexual orientation can establish violations of Title VII based on the sex stereotyping theory).

Consistent with these Commission rulings (and case law from the Supreme Court and other courts), the Commission has instructed our investigators and attorneys that discrimination against an individual because that person is transgender is a violation of Title VII’s prohibition of sex discrimination in employment. Therefore, the EEOC’s district, field, and area offices have been instructed to take and investigate (where appropriate) charges from individuals who believe they have been discriminated against because of transgender status (or because of gender identity or a gender transition).

In addition, investigators and attorneys were instructed that lesbian, gay, and bisexual individuals also may bring valid Title VII sex discrimination claims, and that the EEOC should accept charges alleging sexual-orientation-related discrimination. These allegations might include, for example, claims of sexual harassment or other kinds of sex discrimination,such asadverse actions taken because of the person’s failure to conform to sex-stereotypes (such as those listed above).

Charge Data

In January 2013, the EEOC began tracking information on charges filed alleging discrimination related to gender identity and/or sexual orientation. In the final three quarters of FY 2013 (January through September), EEOC received 667 charges raising allegations of sex discrimination related to sexual orientation and 161 charges alleging sex discrimination based on gender identity/transgender status. In the first three quarters of FY 2014, the EEOC had received 663 charges alleging sex discrimination related to sexual orientationand140 charges alleging sex discrimination on the basis gender identity/transgender status.

The chart below shows charges resolved between January 2013 and June 30, 2014 that included an allegation of sex discrimination related to gender identity or sexual orientation:

FY2013

FY2014 through 3rd Q

Total

Sex – Gender Identity / Transgender

Sex – Sexual Orientation

Total

Sex – Gender Identity / Transgender

Sex – Sexual Orientation

Total Receipts
801 160 667 784 140 663

Pending
173 45 133 386 74 319

Resolved
628 115 534 398 66 344

Settlements
62 9 55 38 10 30

Withdrawal w/Benefits
33 6 28 22 22

Reasonable Cause
16 7 9 1 1 1

% Reasonable Cause
2.5% 6.1% 1.7% 0.3% 1.5% 0.3%

Successful Conciliation
10 3 7

Unsuccessful Conciliation
6 4 2 1 1 1

Merit Resolutions
111 22 92 61 11 53

% Merit Resolutions
17.7% 19.1% 17.2% 15.3% 16.7% 15.4%

No Reasonable Cause
420 78 357 251 33 223

Administrative Closures
97 15 85 86 22 68

Monetary Benefits
$1,874,148 $421,701 $1,561,671 $884,659 $149,933 $747,225

Note: Charges may have multiple allegations so totals will not tally with breakdowns of specific bases or issues.

Further information on our charge receipts and resolutions under Title VII can be found here.

Litigation Activity

The Commission has begun to file LGBT-related lawsuits under Title VII challenging alleged sex discrimination. Most recently the Commission filed two lawsuits involving sex discrimination against transgender individuals:
•EEOC v. Lakeland Eye Clinic, P.A. (M.D. Fla. Civ. No. 8:14-cv-2421-T35 AEP filed Sept. 25, 2014). The EEOC sued Lakeland Eye Clinic, a Florida-based organization of health care professionals, alleging that it discriminated based on sex in violation of Title VII by firing an employee because she is transgender, because she was transitioning from male to female, and/or because she did not conform to the employer’s gender-based expectations, preferences, or stereotypes. The EEOC’s lawsuit alleges the employee performed her duties satisfactorily throughout her employment. However, after she began to present as a woman and informed the clinic she was transgender, Lakeland fired her.
•EEOC v. R.G. & G.R. Harris Funeral Homes Inc. (E.D. Mich. Civ. No. 2:14-cv-13710-SFC-DRG filed Sept. 25, 2014). The EEOC sued Detroit-based R.G. & G.R. Harris Funeral Homes Inc., alleging that it discriminated based on sex in violation of Title VII by firing a Garden City, Mich., funeral director/embalmer because she is transgender, because she was transitioning from male to female, and/or because she did not conform to the employer’s gender-based expectations, preferences, or stereotypes. The lawsuit alleges that an individual had been employed by Harris as a funeral Director/Embalmer since October 2007 and had always adequately performed the duties of that position. In 2013, the worker gave Harris a letter explaining she was undergoing a gender transition from male to female, and would soon start to present (e.g., dress) in appropriate business attire at work, consistent with her gender identity as a woman. Two weeks later, Harris’s owner fired the transgender employee, telling her that what she was “proposing to do” was unacceptable.

Additionally the Commission has filed several amicus briefs and successfully conciliated charges involving these issues.

Federal-Sector Enforcement

In the Federal Sector, EEOC has been implementing the SEP priority with regard to the coverage of LGBT individuals in a variety of ways:
•Tracking gender identity and sexual orientation appeals in the federal sector.
•Issuing federal sector decisions finding that gender identity-related complaints and sexual orientation discrimination-related complaints can be brought under Title VII through the federal sector EEO complaint process.
•Establishing an LGBT workgroup to further the EEOC’s adjudicatory and oversight responsibilities, with the goal of issuing an LGBT federal sector report.
•Issuing guidance, including instructions for processing complaints of discrimination by LGBT federal employees and applicants available on EEOC’s public web site.
•Providing technical assistance to federal agencies in the development of gender transition policies and plans.

Training and Outreach

Finally, EEOC staff are addressing LGBT legal developments in numerous outreach and training presentations to the public. During the first three quarters of FY 2014, field office staff conducted over 350 events where LGBT sex-discrimination issues were among the topics discussed. These events reached a wide variety of audiences, including employee advocacy groups, small employer groups, students and staff at colleges and universities, staff and managers at federal agencies and human resource professionals. To assist in this outreach the EEOC developed a brochure, Gender Stereotyping: Preventing Employment Discrimination of Lesbian, Gay, Bisexual or Transgender Employees.