Gender identity issues are still in the news, and based on activity in the Trump administration and the Texas legislature, discrimination against transgender individuals is alive and well. The EEOC, however, is holding strong to the position that Title VII forbids employment discrimination based on gender identity, a stance affirmed during the Obama administration.
A case in point was in 2016: EEOC v R.G. & G.R. Harris Funeral Homes, in which a transgender woman employee of the funeral home informed her employer of her gender identity and intention to transition. The employee, Aimee Stephens, intended to adhere to the dress code and wear clothing approved for female employees during the transition. She was terminated, then filed a charge of sex discrimination with the EEOC. The suit alleged that the funeral home terminated Stephens because she is transgender, intended to transition from male to female, and did not conform to the employer’s sex-or gender-based expectations and stereotypes.
The district court granted a summary judgment in favor of the funeral home, which used the Religious Freedom Restoration Act (RFRA) as part of its defense. The court agreed that RFRA was a valid defense against Stephens’ wrongful termination claim. The EEOC announced plans to appeal. You can read the complete ruling here.
When Donald Trump appointed EEOC Commissioner Victoria Lipnic as acting chair of the agency, observers expected the agency to back away from anti-LGBTQ discrimination cases. However, in its opening brief for the appeal at the U.S. Court of Appeals for the Sixth Circuit, the EEOC reaffirmed its previous arguments opposing the ruling:
“Title VII’s prohibition on discrimination ‘because of … sex’ encompasses discrimination based on transgender status and/or transitioning.”
The agency also maintained that the RFA does not exempt an employer from complying with Title VII based on the religious beliefs of the owner.
The position aligns with what President Trump said during his campaign — that he would preserve President Obama’s Executive Order that prohibits discrimination of LGBT individuals employed by the federal government and federal contractors. However, in late February, President Trump rescinded federal protections allowing transgender students to use the bathroom that matched their gender identity. Whether that is the first step toward dismantling LGBT rights remains to be seen.
In the context of Title VII, the EEOC is maintaining that sex discrimination guidelines include transgender individuals. What is unknown is whether the agency will continue to place a priority on sex discrimination cases on behalf of transgender employees. Meanwhile, a number of courts have ruled that gender identity is protected by Title VII.
With so many unknowns, employers would be wise to consider policies, practices, and procedures that impact transgender employees to make sure they are inclusive. We will be happy to advise you as you do so.