With recent guidance issued from the Obama Administration, a lot of focus has been given to the rights of transgender students in the context of public schools. But public and private sector employers beware; the same rules may have also applied to you all along.
Several agencies: the EEOC, OSHA, and the DOJ to name a few, have all taken the position that Title VII prohibits discrimination on the basis of sexual orientation and gender identity.
As early as 2012, the EEOC took the position that discrimination against a transgender individual is discrimination based on sex. This sort of gender identity discrimination would therefore be covered under Title VII of the Civil Rights Act of 1964. The EEOC’s interpretation of this statute applies to its adjudication and enforcement in the federal sector, as well as private sector and state and local government employment. The EEOC has taken this position in multiple published decisions involving federal employment over the past several years, and has reiterated the position in litigation against private companies.
In 2012, the EEOC was involved in an action against the Department of Justice’s Bureau of Alcohol, Tobacco, Firearms and Explosives, wherein the EEOC held that discrimination based on gender identity/transgender status necessarily involves sex discrimination insomuch as it is based on non-conformance with gender norms and stereotypes. This interpretation grew out of an earlier (1989) decision of the U.S. Supreme Court that expanded the narrow view of Title VII’s plain language which previously excluded sex discrimination claims by transgender individuals.
Even earlier than that, in 2006, the Western District of Pennsylvania denied a motion to dismiss and held that a plaintiff had sufficiently pleaded claims of gender discrimination where the complaint “included facts showing that [Plaintiff’s] failure to conform to sex stereotypes of how a man should look and behave was the catalyst behind Defendant’s actions.”
While the Supreme Court has not explicitly reviewed and ratified any Federal agency’s interpretation of gender identity discrimination as sex discrimination, and Pennsylvania has not passed state-wide legislation banning private employers from discriminating against transgender employees, the legal environment is ever-evolving. Accordingly, best practices would suggest you contact your legal counsel should an issue involving the rights of a transgender individual arise.
The Eastern Pennsylvania Employment Log (EPELog) is a publication of the KingSpry Employment Law Practice Group. Jeffrey T. Tucker, Esquire, is our editor-in-chief. EPELog is meant to be informational and does not constitute legal advice.
