⊕ LEGAL: Government moving rapidly on transgender and sexual orientation issues

Jeff Jones
Jeff Jones.

In September, the Equal Employment Opportunity Commission (EEOC) filed two lawsuits against two different employers alleging they violated Title VII’s prohibition on sex discrimination by firing transgender employees based upon their gender identity (EEOC v. Lakeland Eye Clinic, No. 14-2421 (M.D. Fla.); and EEOC v. R.G. & G.R. Harris Funeral Homes, Inc., No. 14-13710 (E.D. Mich.)). In one of the cases the employee informed the company that she was transgender, and in the other case the employee informed the company that she intended to undergo surgery to transition to a woman. The lawsuits rely upon the EEOC’s 2012 ruling in Macy v. Holder, 2012 W.L. 1435995 (April 20, 2012), arising in the federal sector, where the EEOC has adjudicative authority. In that case, the EEOC held that Title VII’s prohibition on sex discrimination is violated when employment decisions are based upon an employee’s transgender status or gender identity, or because the employee has transitioned or intends to transition to the different sex. Both lawsuits seek injunctions to end the discrimination and to force the employers to institute new non-discriminatory policies, as well as compensatory and punitive damages.

On July 21, 2014, President Barack Obama issued an Executive Order amending Executive Order No. 11246 to prohibit employment discrimination by federal contractors against LGBT (lesbian, gay, bi-sexual and transgender) employees. The order directs the DOL to issue implementing regulations within 90 days. While the amendment took effect immediately, it only applies to government contracts entered into on or after the effective date of the final regulations.

Finally, on Dec. 18, 2014, Attorney General Eric Holder stated that the U.S. Department of Justice will now take the position that Title VII of the 1964 Civil Rights Act’s prohibition against sex discrimination includes bias based on gender identity and transgender status. He admitted that the federal government’s position on this issue has changed over the past several years, and that his memo was designed to clear up any confusion and to foster consistent treatment of the issue.

In a related development, a federal judge in Seattle ruled that an employer may have violated federal and state discrimination laws by denying health benefits to same-sex spouses (Hall v. BNSF Railway Co., No. 13-2160 (W.D. Wash.)). The couple, who were legally married in Washington State and one of whom worked for the employer, sued the company for failing to provide health insurance for his same-sex spouse while providing such coverage to the different-sex spouses of employees. The judge considered the case as one involving disparate treatment based on sex, not sexual orientation. That is, the employer treated a male who married a male differently than it treated male employees who married females. A similar lawsuit has been filed against Little Caesar’s restaurant in California. Further complicating that case is a statement made to the employee by a corporate representative that the since company is headquartered in Michigan, which does not recognize same-sex marriage, the company did not have to provide benefits to the same-sex spouses of employees (Bernard v. Ilitch Holdings, Inc. et al., No. 30-2014-00742153-CU-OE-CJC (Cal. Super. Ct., Orange Country August 27, 2014)).

Editor’s note: Thirty-four states currently allow same-sex marriage, whether by legislative action or by judicial order. Some 15 states plus the District of Columbia prohibit discrimination based on gender identity, along with the EEOC, the Office of Federal Contract Compliance Programs, and the Department of Labor. Additionally, three states prohibit discrimination based on gender preference. In light of these developments, employers should think about adding “gender identity” to their non-discrimination policies. These legal and policy changes do require consideration of new factors such as how employers should handle sensitive issues such as bathroom use, dress codes and harassment.                                    


Jeffrey G. Jones is a regional managing member for Wimberly Lawson Wright Daves & Jones PLLC. He can be reached at jjones@wimberlylawson.com.


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