Transgender Employment Rights Front And Center For EEOC

Last month I wrote about “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. … 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.”

Definition "discrimination"

The EEOC has taken the position (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 said in a recent press release.

Title VII does not explicitly forbid discrimination based upon gender identity and sexual orientation, so the EEOC bases its gender identity and sexual orientation cases upon sex discrimination.

The EEOC is actively pursuing these cases: it just filed a second sex discrimination case, in Illinois, on behalf of a transgender employee, after an “administrative investigation [by the EEOC] revealed that the company’s managers disapproved of the employee’s gender transition and found a pretext for firing her.”

The EEOC suit which I wrote about last month alleged a hostile workplace at Bojangles based upon repeated offensive comments made by a manager and assistant managers to a transgender 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.

The EEOC regional attorney in Chicago said about the latest case that “All people deserve the opportunity to earn a living and be judged on the quality of their work, rather than on sex-based considerations. That includes transgender employees, and the EEOC is committed to making sure such individuals’ rights under Title VII are protected.”





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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]