TBA Law Blog

Posted by: Christy Gibson on Jan 16, 2015

By John R. LaBar*

In advising your clients on HR matters, you will find that most of them are familiar with the list of categories protected from employment discrimination under Title VII of the Civil Rights Act of 1964, the Equal Pay Act of 1963, the Age Discrimination in Employment Act (ADEA), the Americans with Disabilities Act of 1990 (ADA), GINA, and the Civil Rights Act of 1991.  These laws prohibit discrimination based on race, color, sex, religion, national origin, age, disability, and genetic information, as well as reprisal for protected activity.  Absent from this list is any mention of sexual orientation or gender identity.

However, the EEOC has 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 covered under Title VII.[i]  The EEOC has also found that claims by lesbian, gay, and bisexual individuals alleging sex-stereotyping state a sex discrimination claim under Title VII.[ii]

Federal legislation, the Employment Non-Discrimination Act (ENDA), has been proposed for years to protect transgender, lesbian and gay employees, against employment discrimination on the basis of sexual orientation and gender identity.  But while ENDA has been introduced in every Congress since 1994 (except the 109th), it has never mustered enough votes to make it to the President’s desk. 

It now appears that the EEOC has decided to take matters into its own hands, and made history on September 25, 2014, by filing its first lawsuits against businesses accused of sex discrimination against transgender employees.

The two lawsuits involve Michigan-based R.G. & G.R. Harris Funeral Homes, Inc.[iii] and Lakeland Eye Clinic.[iv] The EEOC has alleged in each case that the employer discriminated based on sex in violation of federal law 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. 

Harris Funeral Homes had employed Amiee Stephens as a Funeral Director/Embalmer since October 2007 and the employee had always adequately performed the duties of that position.  In 2013, the employee gave Harris a letter explaining she was undergoing a gender transition from male to female, and would soon start to dress in appropriate business attire at work, consistent with her gender identity as a woman.  Two weeks later, the owner of employer fired the employee, telling her that what she was “proposing to do” was unacceptable.  

According to the complaint, Lakeland’s employee had performed her duties satisfactorily throughout her employment.  However, after she began to present herself as a woman and informed the clinic she was transgender, Lakeland fired her. 

In both cases, the EEOC has alleged that the employers’ conduct violates Title VII, which prohibits sex discrimination, including that based on gender stereotyping.  The EEOC filed suit in both cases seeking both monetary and injunctive relief.

The EEOC announced in its news releases for the Harris and Lakeland cases that these cases are part of the EEOC’s ongoing efforts to implement its Strategic Enforcement Plan (SEP) adopted in December of 2012, which included “coverage of lesbian, gay, bisexual and transgender individuals under Title VII’s sex discrimination provisions, as they may apply” as a top Commission enforcement priority.[v]

Until now, the EEOC has made its position known that it believes that transgender individuals are protected by Title VII’s gender discrimination provisions.  However, such a position is not clear on the face of Title VII.  As such, the EEOC’s position does not carry the weight of law.  The EOC now wishes to test its position in the courts in order to give its position more force.

While these cases work their way through the courts, employers should be ready to deal with issues that arise with transgender employees in their workplace.  These issues can range from decisions about whether or not a transitioning employee may use the restroom corresponding to their gender presentation, to an employer’s duty to change a transitioning employee’s first name on their employment records at their request.


*John R. LaBar is a named member at Henry, McCord, Bean, Miller, Gabriel & LaBar, P.L.L.C. in Tullahoma, Tennessee and is a member of the Labor & Employment Law Section of the TBA.  He is a frequent speaker at legal and human resource seminars on employment law topics.  He can be reached at jlabar@henry-mccord.com or (931) 455-9301.

[i]See Macy v. Department of Justice, EEOC Appeal No. 0120120821 (April 20, 2012), http://www.eeoc.gov/decisions/0120120821%20Macy%20v%20DOJ%20ATF.txt.

[ii]See Veretto v. U.S. Postal Service, EEOC Appeal No. 0120110873 (July 1, 2011), http://www.eeoc.gov/decisions/0120110873.txt; Castello v. U.S. Postal Service, EEOC Request No. 0520110649 (Dec. 20, 2011), http://www.eeoc.gov/decisions/0520110649.txt.

[iii]EEOC v. R.G. & G.R. Harris Funeral Homes Inc., Case No. 2-14-cv-13710 filed in the United States District Court for the Eastern District of Michigan, Southern Division.

[iv]EEOC v. Lakeland Eye Clinic, P.A., Case No. 8:14-cv-02421 filed in the United States District Court for the Middle District of Florida, Tampa Division.

[v]In addition to the EEOC’s lawsuits, on December 3, 2014, the U.S. Department of Labor’s Office of Federal Contract Compliance Programs (OFCCP) announced a Final Rule that will prohibit federal contractors from discriminating in employment on the basis of sexual orientation or gender identity.  This Final Rule implements Executive Order (EO) 13672, signed by President Barack Obama on July 21, 2014, which adds sexual orientation and gender identity to the prohibited bases of discrimination in EO 11246.