|April 19, 2013|
Previously published on April 17, 2013
While not receiving as much press as the Proposition 8 and DOMA cases currently pending in the Supreme Court, other news in the fight to gain legal protections for lesbian, gay, bisexual and transgender (“LGBT”) individuals merits significant attention. In December of 2012, the Equal Employment Opportunity Commission (“EEOC”) issued a Strategic Enforcement Plan which identifies the coverage of LGBT individuals under Title VII’s sex discrimination provisions as a national priority. Although sexual orientation is not a protected category under Title VII, the EEOC has taken the position that “gender stereotyping” is a form of sex discrimination and is accordingly pursuing these claims within the existing legal parameters of Title VII.
The EEOC Holds that Transgender Individuals May State a Claim for Sex Discrimination
In Macy v. Bureau of Alcohol, Tobacco, Firearms and Explosives, EEOC Appeal No. 0120120821, the Commission held that discrimination based on gender identity, change of sex, and/or transgender status is a cognizable claim under Title VII. The EEOC based its decision on Price Waterhouse v. Hopkins, 490 U.S. 228, 251 (1989), in which the Supreme Court held that Title VII bars “not just discrimination because of biological sex, but also gender stereotyping - failing to act and appear according to expectations defined by gender.” Relying on Price Waterhouse and its progeny, the EEOC held that Title VII prohibits discrimination not only on the basis of a person’s sex, but also based on a person’s decision to change his or her sex. The EEOC analogized this type of discrimination to discrimination based on a person’s decision to change religions and concluded that such individuals are clearly entitled to protection under Title VII.
While most courts have found Title VII protection for transgender people based on a theory of gender stereotyping, the EEOC determined that “evidence of gender stereotyping is simply one way of proving sex discrimination.” The EEOC therefore held that “Title VII prohibits discrimination based on sex whether motivated by hostility, by a desire to protect people of a certain gender, by assumptions that disadvantage men, by gender stereotypes, or by the desire to accommodate other people’s prejudices or discomfort.”
Other Federal Cases
The EEOC’s decision in Macy is not binding on federal courts interpreting Title VII; however, the EEOC is aggressively prosecuting similar federal cases with varying degrees of success. For example, in EEOC v. Boh Brothers Construction Co., 689 F.3d 458 (5th Cir. 2012), the Fifth Circuit rejected a same-sex harassment claim brought by the EEOC based on illegal sex stereotyping. The court found that evidence that the claimant was repeatedly called “faggot” and “princess” was insufficient to show that the claimant was treated improperly for failing to conform to society’s expectations of maleness. Because the Fifth Circuit rejected the claim on evidentiary grounds, it failed to consider the merits of the EEOC’s sexual stereotyping argument, but it noted that other courts have accepted such an argument. The EEOC subsequently filed a petition for rehearing en banc, which the Fifth Circuit granted on March 28 of this year. See also EEOC v. DynCorp International, LLC, Civil Action No. 1:11-cv-874 (E.D. Va. Jan. 6, 2012) (approving consent decree in enforcement action alleging that aircraft mechanic had been subjected to same-sex sexual harassment by a male co-worker based on harasser’s belief that mechanic did not conform to the gender stereotype for a man; according to the EEOC, the alleged harassment included daily derogatory sex-based comments, such as accusations that the employee was gay and engaged in homosexual acts, and descriptions of homosexual acts, as well as other discriminatory conduct); EEOC v. McPherson Cos., Inc., No. 2:10-cv-02627-WMA, 2012 U.S. Dist. LEXIS 162584 (N.D. Ala. Nov. 14, 2012) (dismissing on summary judgment an EEOC enforcement action alleging distribution company had violated Title VII by subjecting male employee to same-sex sexual harassment based on non-conformance to gender stereotype for males).
These cases demonstrate that the EEOC will aggressively prosecute claims of discrimination against LGBT individuals. Employers should therefore examine their discrimination and anti-harassment policies to ensure that such policies include prohibitions against harassment, teasing, name-calling, or other behavior that is based on perceptions of how members of one gender are supposed to act. When conducting discrimination and harassment training, employers should also explain that such behavior is prohibited in the workplace and could give rise to lawsuits or EEOC charges.