Changes in the Workplace: EEOC and DOL Tackle Tough Transgender Issues

In early 2014, a court ruled that the EEOC may proceed with Title VII sex discrimination claims on the basis of transgender discrimination. Almost immediately thereafter, the EEOC filed two federal complaints: EEOC v. Lakeland Eye Clinic, P.A. (No. 8:14-cv-2421) in the Middle District of Florida and EEOC v. R.G. & G.R. Harris Funeral Homes, Inc. (No. 2:14-cv-13710) in the Eastern District of Michigan. Both cases involved transgender women who alleged they were fired soon after notifying their employers that they would begin transitioning from presenting as a man to presenting as a woman. The Florida case has settled and the Michigan case is pending.

More recently, the EEOC filed its third transgender-related lawsuit. This time, the EEOC alleges that Deluxe Financial Services Corp., a Shoreview, Minnesota-based check-printing and financial services corporation, violated federal law by subjecting a transgender employee to sex discrimination. EEOC v. Deluxe Fin. Serv. Corp. (No. 15-cv-02646 D. Minn.). According to the lawsuit, the employee in question identified as male when originally hired. The employee performed  the job satisfactorily in the company's Phoenix offices throughout a lengthy tenure there. However, after the employee began to present at work as a woman and informed her supervisors that she was transgender, Deluxe refused to let her use the women's restroom. The lawsuit alleges that supervisors and coworkers subjected the employee to a hostile work environment, including hurtful epithets and intentionally using the wrong gender pronouns to refer to her. The lawsuit alleges that this behavior violated Title VII, which prohibits sex discrimination, including that based on transgender status and gender stereotyping.

The Deluxe Financial, Lakeland Eye Clinic, and G.R. Harris Funeral Homes cases are part of the EEOC’s ongoing efforts to implement its Strategic Enforcement Plan (SEP), which it adopted in December 2012. The SEP includes "coverage of lesbian, gay, bisexual and transgender individuals under Title VII's sex discrimination provisions, as they may apply" as a top Commission enforcement priority.

Consistent with the SEP, on June 3, 2015, the EEOC issued a guide with three other agencies on LGBT Discrimination Protections for Federal Workers. While the Guide only applies to federal workplaces, it is a valuable tool for private-sector employers to use in implementing LGBT policies for the workplace, particularly given the EEOC’s recent litigation.

Additionally, on June 1, 2015, the Department of Labor published a Guide to Restroom Access for Transgender Workers, which is applicable to all employers. The Guide states that all employees, including transgender employees, should have access to restrooms that correspond with their gender identity.

All employers should be aware of the importance of understanding and implementing procedures to accommodate transgender employees in accordance with applicable law. An increasing number of state, county and city laws already expressly prohibit discrimination based on gender identity.