In over a dozen cases in recent years, the Equal Employment Opportunity Commission has advocated for Title VII protection of employees discriminated against on the basis of transgender status or sexual orientation. The applicability of Title VII to discrimination on these bases continues to vary by Circuit, but the momentum appears to be in the EEOC’s favor.
In North Carolina, the EEOC is currently in litigation with Bojangles Restaurants, because of a hostile work environment for transgender employees. The charging employee was allegedly subjected to offensive comments about her gender identity and required by management to behave and dress in a stereotypically male way. The EEOC is currently seeking injunctive relief requiring Bojangles to implement policies that do not discriminate against transgender employees in addition to backpay, compensatory and punitive damages for the charging employee.
In Pennsylvania, the EEOC has sued Scott Medical Health Center because of discrimination against an employee on the basis of his sexual orientation. This case involved employee harassment on the basis of sexual orientation including allegations of frequent vulgar comments and anti-gay epithets made by an immediate superior. The employee reported this harassment to the employer to no avail, which led to his resignation.
In Louisiana, the EEOC has intervened in a lawsuit against First Tower Loan by a transgender job applicant. During the employment interview, a manager asked to see the applicant’s driver’s license and asked why his male gender presentation was inconsistent with the gender on his license. The charging employee explained that he was transgender. Citing confusion for customers, First Tower Loan required as a condition of employment that he sign an agreement to behave and dress as a female at work. The employee refused, filed a charge with the EEOC and later filed this suit.
The above cases are premised on a theory that discrimination and harassment on the bases of an employee’s sexual orientation or transgender status amounts to discrimination “on the basis of sex” for purposes of Title VII. Beginning with the Supreme Court’s decision in Price Waterhouse v. Hopkins, 490 U.S. 228 (1989), discrimination on the basis of sex has been interpreted more broadly to include discrimination on the basis of an employee’s nonconformance with stereotypical gender expression. As the EEOC is proving in more and more cases since the 6th Circuit’s decision in Smith v. City of Salem, Ohio, 378 F. 3d 566 (6th Cir. 2004), this theory is gaining traction as a way to make employment discrimination for LGBT employees unlawful under Title VII.