The EEOC and Transgender Issues
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The document outlines the EEOC's position on transgender discrimination, emphasizing that it is considered sex discrimination under Title VII. It references notable cases and enforcement priorities related to LGBTQ+ protections and provides recommendations for employers regarding restroom use, name changes, and dress codes to comply with legal standards. Key takeaways include allowing employees to choose restrooms that align with their gender identity and updating company records to reflect name changes.
The EEOC and Transgender Issues
- 1. The EEOC and Transgender Issues Presented By: Jennifer L. Gokenbach Denver, Colorado Worklaw® Network 21c Museum Hotel | Louisville, Kentucky April 30, 2016
- 2. Macy v. Eric Holder & U.S. Dept. of Justice, 2012 WL 1435995 (Apr. 20, 2012) u First public sector ruling that “discrimination based on gender identity, change of sex, and/or transgender status” is discrimination “because of sex” under Title VII u EEOC’s official position is that transgender discrimination is per se sex discrimination u Decision binding on all federal agencies
- 3. “Coverage of lesbian, gay, bisexual, and transgender individuals under Title VII’s sex discrimination provisions” is a top EEOC enforcement priority. ----2013-2016 EEOC Strategic Enforcement Plan
- 4. States with Some Form of LGBT Protections
- 5. Sexual Orientation and/or Gender Identity/Transgender Status EEOC Charges 0 200 400 600 800 1000 1200 1400 1600 FY2013 FY2014 FY2015 801 1100 1412
- 6. Federal Sector Cases u Jameson v. U.S. Postal Service, 2013 WL 2368729 (May 21, 2013) u Intentional misuse of a transgender employee's new name and pronoun may constitute sex-based discrimination and/or harassment u Complainant v. Dep’t of Veterans Affairs, 2014 WL 1653484 (Apr. 16, 2014) u An employer's failure to revise its records pursuant to changes in gender identity stated a valid Title VII sex discrimination claim u Lusardi v. Dep’t of the Army, 2015 WL 1607756 (Mar. 27, 2015) u An employer's restrictions on a transgender woman's ability to use a common female restroom facility constitutes disparate treatment
- 7. Private Sector Cases Filed By EEOC u EEOC v. Scott Medical Health Center, P.C., W.D. Pa., No. 2:16-cv- 00225-CB (filed March 1, 2016) u Allegations that Baxley's immediate supervisor knew that Baxley was gay and made vulgar anti-gay statements and other statements based on sex stereotypes. When Baxley complained about the harassment to the medical director, the medical director allegedly took no corrective action. 2-3 weeks later, Baxley resigned. u EEOC v. Pallet Companies d/b/a IFCO Systems NA, Inc., D. Md., No. 1:16-cv- 00595-RDB (filed March 1, 2016) u Allegations that supervisor harassed Boone by repeatedly making comments, sometimes accompanied by sexually suggestive gestures, to Boone about her sexual orientation and nonconformity with stereotypical female gender norms. A few days after Boone allegedly complained to management and called the employee hotline to complain, her employment was terminated.
- 8. Key Takeaways u Restroom use: Allow employees to choose the restroom that corresponds to their gender identity. Trending case law, many city ordinances, the Occupational Safety and Health Administration, and the EEOC agree that employees cannot be required to use a sex specific restroom. Employers who have any concerns may install unisex restrooms or multiple-occupant, gender neutral restrooms with lockable single stalls. u Name changes: Make necessary changes to company documents after an employee legally makes a name change and use the employee’s preferred name and pronouns when referring to the employee in the workplace (regardless of legal name or status of transition). u Dress code and grooming standards: Maintain policies in a manner that does not discriminate on the basis of sex and apply them consistently across the workplace to avoid gender stereotypes.
- 9. Jennifer L. Gokenbach, Esq., MBA Industry Commercial Building | 3001 Brighton Blvd., Suite 2660 | Denver, Colorado 80216 E: [email protected] | T: 866.578.6223 Discussion Worklaw® Network 21c Museum Hotel | Louisville, Kentucky April 30, 2016