The Federal Government’s Evolving Stance on Transgender Discrimination

Skeptical, doubtful businesswoman.

Announcing you will be transitioning at work can be nerve-wracking. You never know how your coworkers, or your employer will respond to your desire to live openly according to your gender identity. That’s why it is good to know that, for now at least, LGBT workers can turn to the Equal Employment Opportunity Commission to defend their rights and their transgender discrimination cases.

In this blog post, I will discuss the EEOC’s lawsuit against Ellucian, an educational services company, for transgender discrimination against one of its employees, which settled in 2016. I will discuss whether gender identity is still protected under Title VII and the pending U.S. Supreme Court case that could affect future gender identity discrimination claims. I will also explain how state laws can sometimes fill a gap left by federal anti-discrimination laws.

Ellucian Kicks Transgender Worker Off College Campus

Ellucian is a development and information technology company that provides technology support to college campuses across the country. But when one of those colleges got word that an Ellucian employee was planning to publicly transition from male to female in 2016, the college spoke up. And that created a transgender discrimination issue.

According to a press release by the Equal Employment Opportunity Commission (EEOC) in 2016, Ellucian cut off its employee’s access to her workplace on an unnamed college campus the day after she informed her coworkers that she planned to come out as transgender at work. When the college complained, the IT company, which performed contract work for the college, removed the employee from campus at their request.

Transgender Discrimination is Sex-Stereotyping Discrimination, for Now

When transgender discrimination happens, LGBT workers have the right to be protected by state and federal anti-discrimination laws. At the federal level, Title VII of the Civil Rights Act protects against discrimination based on a person’s sex or gender (among other traits). Several courts, including the U.S. Supreme Court, have ruled that this includes transgender discrimination. They say that employers cannot make adverse employment decisions against employees (including removing them from particular jobs) based on sexual stereotypes or assumptions, such as how a person should speak or dress.

In 2018, in EEOC v R.G. & G.R. Harris Funeral Homes, Inc., the Sixth Circuit Court said that announcing you intend to transition is enough to trigger transgender discrimination protections:

"Discrimination on the basis of transgender and transitioning status is necessarily discrimination on the basis of sex."

The 2016 settlement announcement in the Ellucian case contained strong language about the EEOC’s position regarding transgender discrimination:

“EEOC's recent work on sex discrimination on the basis of transgender status and sex stereotyping goes back four years, when the Commission issued an opinion in Macy v. Dep't of Justice, EEOC Appeal No. 0120120821, 2012 WL 1435995 (April 20, 2012), in which EEOC ruled that employment discrimination against employees because they are transgender is sex discrimination which violates Title VII. Since that time, EEOC has focused on protecting transgender individuals as a strategic enforcement priority and has resolved several potential charges and lawsuits.”

But in more recent years, the EEOC has turned its focus elsewhere. There have been no more recent settlements or lawsuits filed on the basis of transgender discrimination. While the EEOC still says businesses are banned from discriminating against LGBT workers based on sex biases, other parts of the Trump Administration have sought to legitimize transgender discrimination at the federal level.

U.S. Supreme Court to Decide the Future of Transgender Workers’ Rights

The internal dispute about transgender discrimination within the Trump Administration is getting some very public attention. That’s because the U.S. Supreme Court has agreed to hear another EEOC case filed on behalf of a transgender worker, Aimee Stephens. That case (the same one quoted above), could shape the future of transgender workers’ rights and expand or limit their access to federal anti-discrimination laws.

While the EEOC originally filed the case, once the Trump Administration took over, Aimee Stevens and non-profit groups including the American Civil Liberties Union stepped in to protect her rights. That was especially important since it was the Justice Department, not the EEOC that would have been arguing the case at the U.S. Supreme Court level. And Attorney General Jeff Sessions’ position doesn’t match the one the EEOC quoted in 2016.

State Laws Remain Steady for LGBT Workers Facing Uncertain Futures

The good news is that even if the U.S. Supreme Court rules that Title VII of the federal Civil Rights Act doesn’t apply to transgender discrimination or announcements of the intent to transition, their state laws might. New York and several other states have passed more inclusive state-level anti-discrimination laws that protect LGBT workers against discrimination based on sexual orientation or gender identity. Even if the Supreme Court takes the Trump Administration’s perspective on Title VII, these laws will remain on the books and provide protection to workers within these states who face the fear of being fired for coming out or publicly transitioning to their appropriate gender identity.

At Eisenberg & Baum, LLP, our gender discrimination attorneys make it a point to stay up-to-date on all the latest changes and trends in transgender discrimination law. We know how to use both state and federal laws to protect LGBT workers from discrimination based on sexual orientation or gender identity. If you are gay or transgender and looking for help ending discrimination at work, contact us today to schedule a free consultation.

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