Contrasting Lawsuits About Transgender People Underscores Polarization In The US

A strange juxtaposition in employment discrimination law today:  The EEOC has just sued to, effectively, expand the rights of transgender people, while 23 states have just sued to, effectively, limit those rights.

A unified country this is not; cracks and fissures have become the norm.

Broken Egg

While 13 states, and then another 10 states, filed suits in Texas and Nebraska federal court seeking to enjoin the President’s recent administrative order barring employers and schools from discriminating on the basis of gender identity, the EEOC filed suit against a North Carolina Bojangles Restaurant for allegedly subjecting a transgender employee to a hostile work environment because of her gender identity.

States’ Suits

The states’ lawsuits claim that the executive order “improperly attempt[s] to redefine sex discrimination under Title VII of the Civil Rights Act of 1964 and under Title IX of the Education Amendments Act of 1972 to include gender identity.”

The NYT stated that “A May letter from the Obama administration to public school districts said that students must be allowed to use facilities consistent with their gender identity and that schools must ‘provide transgender students equal access to educational programs and activities even in circumstances in which other students, parents or community members raise objections or concerns.’ … The latest lawsuit was largely similar to the one filed in May by the 11 other states.”

Bathroom Signs

The Times also reported that, on the other hand, “Massachusetts created new legal protections for transgender people to use public accommodations — including bathrooms — that match their gender identity, with a bill signed by Gov. Charlie Baker, a Republican. ‘While other states are looking for ways to limit the rights of transgender Americans, Massachusetts today, with a Republican governor and a majority bipartisan vote, became the 18th state in the country to prove that this is not a big issue,’ said Matthew McTighe, the executive director of Freedom for All Americans, a group that advocates the rights of transgender people.”

The EEOC Suit

Trangender Rights Protest Signs During Halifax Pride Parade

While the effect, if not the intent, of the suits filed by these states would be to “limit the rights of transgender Americans,” as the Massachusetts commentator noted above, the effect of the EEOC suit would be uphold the rights of transgender people in the workplace, and to vindicate the EEOC’s position, itself not settled law but currently before the courts, that “Title VII of the Civil Rights Act of 1964, [] protects employees from sex discrimination, including harassment based on gender identity and sexual orientation,” as the EEOC says its it press release announcing the new lawsuit.

The EEOC suit alleges a hostile workplace at Bojangles based upon repeated offensive comments made by a manager and assistant managers to a transgendered employee about her gender identity and appearance.   They demanded that the employee “who identifies and presents as a woman, engage in behavior and grooming practices that are stereotypically male, because that is the sex …  [she] was  assigned at birth.”

The employee complained and shortly thereafter was fired.  The EEOC alleges that this was retaliation.

Takeaway: These contrasting lawsuits perfectly parallel the divide — the polarization – in the country today.  As always, the workplace is the perfect battleground, the perfect microcosm for society’s political and cultural battles.  The workplace always sits on society’s many fault lines.

tug of war

That is one reason why the study (and practice) of employment discrimination law is endlessly fascinating and energizing — as well as discouraging and frustrating.

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Richard Cohen

Richard B. Cohen is a partner in the New York City office of FisherBroyles, LLP, a national law firm. Richard Cohen has litigated and arbitrated complex corporate, commercial and employment disputes for more than 35 years, and is a trusted advisor to business owners and in-house counsel both in the United States and internationally. His clients have included Fortune 100 companies, domestic and foreign commercial and investment banks, Pacific-rim corporations and real estate development companies, as well as start-up businesses throughout the United States. Email Richard at [email protected]