Transgender Employees Enjoy Protection Against Workplace Discrimination Despite the Language of Law

July 16, 2015

By Alex E. Jones

Title VII of the Civil Rights act protects workers from discrimination on the basis of race, color, religion, sex and national origin. However, the statute does not contain any explicit protections for LGBT workers. In light of this, the EEOC has recently ramped up its efforts to convince courts that LGBT workers are entitled to protection based on existing law and despite the text of Title VII, as highlighted by a recent decision by the United States District Court for the Eastern District of Michigan.

The plaintiff in EEOC v. R.G & G.R. Harris Funeral Homes, Amiee Stephens, was employed by the defendant as the Funeral Director/Embalmer since 2007. There was no dispute that she had adequately performed her duties.  In 2013, Stephens informed her employer and co-workers that she was transgender.  In a letter to the company, she stated she would be undergoing a gender transition from male to female and that she would begin to dress in proper women’s attire while at work.  Her employer fired her two weeks later, saying what she was “proposing to do” was unacceptable.

Shortly thereafter, the EEOC brought an employment discrimination claim against the funeral home. The EEOC asserted that Stephens’ termination was a violation of Title VII because it was “motivated by sex-based considerations.” The employer filed a motion to dismiss arguing that while Title VII protects against sex-based employment discrimination, “transgender” is not a protected status under Title VII. This is true, and if the EEOC’s argument rested solely upon Stephen’s status as transgender, then the Court most certainly would have dismissed the case. Instead, the EEOC argued Stephens was fired because she “did not conform to the Funeral Home’s sex or gender-based preferences, expectations, or stereotypes.” Relying on 6th Circuit precedent, the Court agreed and denied the motion to dismiss.

The court reasoned that any person can assert a sex stereotyping gender-discrimination claim under Title VII if that person’s failure to conform to sex stereotypes was the driving force behind an adverse employment action.  Further, an employer cannot evaluate employees by “insisting that they match the stereotype associated with their group.”  The EEOC argued and the court agreed that Stephens would not have been discriminated against for wearing women’s attire if her outward appearance was female as opposed to male. Accordingly, the Funeral Home’s conduct was discriminatory.

Although this decision does not make “transgender” a protected status under Title VII, it does create a work-around, enabling courts to provide workplace protections to transgender persons.

Employers should be proactive in addressing these issues by creating and implementing anti-harassment policies and offering training on such matters. Employers should also keep in mind that states are free to enact legislation that is more inclusive that Title VII, and over 15 states explicitly prohibit discrimination on the basis of gender expression and/or transgender status.

Please contact your KJK attorneys to discuss any questions concerning how best to avoid employment discrimination claims and how to create and support an inclusive workplace.