New Protections For Transgender Employees
Although many states, including Connecticut, have passed legislation, specifically prohibiting discrimination on the basis of gender identity, as currently enacted, Title VII does not expressly prohibit such discrimination. For this reason, since 1994, advocates seeking the expansion of federal protections for individuals on the basis of sexual preference and/or gender identity have unsuccessfully been pursuing legislative change through the Employment Non-Discrimination Act (ENDA).
In view of recent administrative and judicial interpretations of Title VII, however, the failure of ENDA may be of little or no significance in determining workplace protections for individuals on the basis of their gender identity or sexual preference.
In two recent cases filed by the U.S. Equal Employment Opportunity Commission, the EEOC signaled its intent to aggressively pursue claims that will expand Title VII’s prohibition against discrimination based on sex, without legislative change. On Sept. 25, 2014, the EEOC filed suit against two employers in two states, alleging sex discrimination against transgender individuals.
In EEOC v. Lakeland Eye Clinic, No. 8:14-cv-02421-MSS-AEP (M.D. Fla. filed Sept. 25, 2014), the agency claimed, in a news release, that the Florida clinic fired an employee 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.” On the same day, the EEOC sued Michigan-based R.G. & G.R. Harris Funeral Homes for terminating a funeral home director who informed her employer that she was transitioning from male to female and that she intended to appear at work in clothing consistent with her new gender identity. See EEOC v. R.G. & G.R. Harris Funeral Homes, No. 2:14-cv-13710-SFC-DRG (E.D. Mich. filed Sept. 25, 2014).
Although the two cases are significant to employers and employment practitioners alike, the EEOC’s position on the issue of gender identity discrimination is not new. In 2011, the EEOC issued a written decision in Macy, in which it made clear that, in its view, “discrimination against a transgender individual because that person is transgender is, by definition, discrimination ‘based on … sex,’ and such discrimination, therefore, violates Title VII.” Macy, No. 0120120821 (EEOC Dec. 20, 2013) (admin. appeal). In Macy, the complainant alleged that she had been denied a position with the Bureau of Alcohol, Tobacco and Firearms because she had transitioned from male to female. Mia Macy, a well-qualified ballistics expert, alleged that she had been offered the job by ATF before she transitioned and that, when she reported that she would be transitioning, she was suddenly told that funding for the position had been withdrawn. Macy later learned that a male applicant had been hired in her place.
In the Macy decision, the EEOC traced the history of Title VII and conceded that the drafters of Title VII could not have intended to cover individuals on the basis of gender identity at the time the law was drafted. Nonetheless, relying on case law expanding Title VII’s reach to gender-based discrimination and not “only discrimination on the basis of biological sex,” the commission reasoned that Title VII’s protections have been interpreted by the courts to “encompass not only a person’s biological sex but also the cultural and social aspects associated with masculinity and femininity.”
In support of its position, the commission cited Price Waterhouse v. Hopkins, 490 U.S. 228 (1989), in which the U.S. Supreme Court held that an employer could violate Title VII’s prohibition on gender discrimination by applying stereotypes to female employees by, for example, making employment decisions “on the basis of a belief that a woman cannot be aggressive, or that she must not be.” The Macy decision also relied heavily on language from Justice Antonin Scalia’s opinion in Oncale v. Sundowner Offshore Services, in which the court held that same sex sexual harassment was actionable under Title VII. 523 U.S. 75 (1997).
In support of this conclusion, Scalia wrote: “Statutory prohibitions often go beyond the principal evil to cover reasonably comparable evils, and it is ultimately the provisions of our laws rather than the principal concerns of our legislators by which we are governed. Title VII prohibits ‘discrimination … because of … sex’ in the ‘terms’ or ‘conditions’ of employment. Our holding that this includes sexual harassment must extend to sexual harassment of any kind that meets the statutory requirements.”
That language from an opinion crafted by Scalia, considered by most to be a “conservative textualist,” is at the forefront of arguments supporting the expansion of Title VII to cover sexual preference and gender identity, has prompted legal writers to suggest that the Supreme Court has signaled its endorsement of the EEOC’s position. Indeed, one writer has even suggested that “Justice Scalia’s Oncale opinion may have been a catalyst in finally pushing courts to reexamine their precedent on the coverage under Title VII of sexual minorities and gender-nonconforming employees in light of Hopkins.” (Mary Ann Case, “Legal Protections for the ‘Personal Best’ of Each Employee: Title VII’s Prohibition on Sex Discrimination, the Legacy of Price Waterhouse v. Hopkins, and the Prospect of ENDA,” 66 Stanford Law Review (June 2014)).
Although Scalia’s actual view on this subject remains to be seen, given that Oncale involved discrimination based on biological sex, it is less than certain that he would expand Title VII’s reach to sexual preference and gender identity.
Nonetheless, it is certainly true that the Oncale decision and the use of sexual and gender stereotyping to state a claim under Title VII have been used by a number of federal district and circuit courts to find that discrimination on the basis of gender identity is prohibited by Title VII. In Smith v. City of Salem, 378 F. 3d 566 (6th Cir. 2004) for example, the United States Court of Appeals for the Sixth Circuit held that: “Discrimination against a plaintiff who is a transsexual—and therefore fails to act and/or identify with his or her gender—is no different from discrimination directed against [the plaintiff] in Price Waterhouse who, in sex-stereotypical terms, did not act like a woman. Sex stereotyping based on a person’s gender nonconforming behavior is impermissible discrimination, irrespective of the cause of that behavior; a label, such as ‘transsexual,’ is not fatal to a sex discrimination claim where the victim has suffered discrimination because of his or her gender non-conformity.”
Appellate courts reaching similar conclusions include the First, Ninth, and Eleventh Circuits. Other jurisdictions, however, have refused to expand Title VII’s reach beyond the traditional context of discrimination on the basis of biological sex or gender. See Morales v. ATP Health & Beauty Care, No. 3:06CV01430 (AWT), 2008 U.S. Dist. LEXIS 63540 (D. Conn. 2008).
At present, the U.S. Court of Appeals for the Second Circuit, which governs Connecticut employers, has not addressed whether Title VII protections apply to transgender employees, but, in Kiley v. ASPCA, 296 Fed. Appx. 107 (2d Cir. 2008), the court rejected the plaintiff’s attempt to use gender stereotyping for the purposes of “bootstrapping” protections on the basis of sexual orientation into Title VII.
Ultimately, until the Supreme Court definitively weighs in on the issue, there will continue to be lively and partisan debate over Title VII’s reach. The EEOC’s recent filings, however, certainly suggest that it is aggressively seeking the opportunity to obtain clarity from the Supreme Court in the near term.
So how does all of this impact the Connecticut workplace? As a practical matter, Connecticut law has been clear since 2011 that employees are protected from discrimination on the basis of gender identity or expression. Change at the federal level, however, would provide transgender employees an arsenal of much more powerful weapons than those provided under Connecticut law where remedies are limited.
Moreover, given the EEOC’s strong stance on expanding Title VII’s reach, it is reasonable to assume that greater attention will be paid to gender identity concerns in the workplace and that litigation activity may follow, particularly since current Second Circuit precedent conflicts with the EEOC’s position. No employer wants to be the test case. Thus, leaving aside the issue of whether protections under Title VII truly do extend to the transgender community, employers and their counsel should proceed cautiously in handling workplace issues involving transgender employees.
Article By: Pamela Moore, visit: www.ctlawtribune.com