Caitlyn Jenner has dominated the national public interest stories and social media of late. However sensational the news has made this particular story, the issues surrounding transgender individuals are increasingly impacting employers.

Recently, the Eastern District of Michigan permitted one of the first sex-discrimination cases over a transgender employee’s firing to proceed. The Court refused to dismiss the case despite the fact that transgender persons are not a protected class under Title VII, finding instead that transgender employees are like other employees who are permitted to sue their employers over sex stereotypes. The Eastern District of Michigan is part of the Sixth Circuit and should this case proceed to the Sixth Circuit upon appeal, its decision would be binding upon Ohio employers as well as Michigan employers.

In EEOC v. R.G. & G.R. Harris Funeral Homes, Inc, the U.S. District Court Eastern District of Michigan Southern Division, Amiee Stephens, a transgender woman, had been employed with R.G. & G.R. Harris Funeral Homes, Inc. in Michigan since October 2007 as a Funeral Director. She was hired and proceeded to work identifying as a male employee. On July 31, 2013, Stephens informed her employer and co-workers in a letter that she was undergoing a gender transition from male to female and would begin dressing in appropriate female business attire at the workplace.  According to the Complaint, on August 15, 2013, her employer fired her, telling her that what she was “proposing to do” was unacceptable.

On behalf of Stephens, the EEOC brought an employment discrimination lawsuit against the Funeral Home, asserting the that the Funeral Home’s decision to fire Stephens was motivated by sex-based considerations and violated Title VII. Specifically, the Complaint alleged that the Funeral Home fired Stephens because of Stephens’ transition from male to female and/or because Stephens did not conform to the Funeral Home’s sex or gender based preferences, expectations or stereotypes. The key allegation was that the termination was based on gender stereotypes. The EEOC also alleged that the Funeral Home engaged in an unlawful employment practice in violation of Title VII by providing a clothing allowance to male employees and failing to provide a similar allowance to female employees because of their sex.
Continue Reading Transgender status may not be a protected class, but lawsuits involving transgender employees are permitted to proceed

The Equal Employment Opportunity Commission (EEOC) decided on April 20, 2012 that discrimination against an employee on the basis that they are transgender was the equivalent of sex discrimination under Title VII of the Civil Rights Act of 1964. Macy v. Holder, EEOC Case No. 0120120821. Title VII protects employees against discrimination on the basis of a several protected classes, including sex. While many states and municipalities include transgender and sexual orientation as protected classes, Title VII has not been interpreted to protect these individuals on this basis alone. Individuals must show that the discrimination was based on their sex, which is often shown by arguing that stereotypes about genders played a role in the decision making.

The claimant in this case, Mia Macy, was a police detective in the federal Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF). Macy, then male, applied for a transfer within ATF. During the background check for the transfer, Macy informed the investigator that he was transitioning to a female. Five days after ATF learned this information, Macy was informed that the position was no longer available due to budgetary restrictions. Macy later learned that someone else had been hired for the position. Macy was later told that the other individual was hired because the individual was further along in the background check process. Macy believed that the other individual was chosen because of discrimination against Macy as a transgender person.

Macy filed a complaint with the EEOC alleging discrimination on the basis of “gender identity, change of sex, and/or transgender status.” ATF argued that this was not a recognizable claim under Title VII. Macy appealed to the EEOC for a determination. Initially, Macy also claimed sex discrimination on the basis of stereotyping, but that claim later was withdrawn. Courts have long-held that sex stereotyping—that an individual does not conform to the stereotypes for the male or female gender—is actionable.

Continue Reading EEOC Permits Title VII Sex Discrimination Claim Based On Transgender Status To Proceed