Although many states, including Colorado, have made discrimination based on gender identity illegal, gender identity is not a protected status under federal law. However, as we reported last week, the Equal Employment Opportunity Commission (EEOC) has taken the stance that transgender individuals are still protected under Title VII. The agency’s theory is that discrimination against transgender individuals is based on their failure to conform to the sex or gender stereotypes that a male should act and dress like a man and a female should act and dress like a woman. As such, the EEOC views discrimination against transsexual employees as illegal discrimination on the basis of sex under Title VII.
The EEOC filed two separate lawsuits based on this theory on September 25, 2014. Recent developments in both of those cases have given the EEOC’s argument major traction. In the first case, a federal court in Florida approved a $150,000 settlement on April 9, 2015. EEOC v. Lakeland Eye Clinic (M.D. Fla. 2014). In the second case, a Michigan federal court denied the employer’s motion to dismiss, allowing the EEOC to proceed with its Title VII sex discrimination claim. EEOC v. R.G. & G.R. Harris Funeral Homes, Inc. (E.D. Mich. 2015).
In denying the motion to dismiss, the court noted that gender identity is not a protected status, and if the EEOC had solely alleged discrimination on that basis the complaint would have been dismissed. The EEOC’s claim was allowed to proceed because it alleged sex discrimination for failure to conform to gender stereotypes, a claim that is supported by Sixth Circuit case law. Employers will likely see additional claims of Title VII sex discrimination based on transgender bias as the EEOC tests this theory in additional jurisdictions.