The following Q & A has been selected from Employment Law Answer Book, co-authored by Mark R. Filipp.
Q 1:38 Is discrimination based on gender identity or transgendered status prohibited under civil rights employment law?
Like sexual orientation, gender identity, and transgendered status are not specifically listed as protected categories under federal civil rights laws. In 2014, the court in Eure v. Sage Corp. [2014 WL 6611997 (W.D. Tex. Nov. 19, 2014)], held that although a Title VII discrimination claim can be maintained against an employer that takes adverse action against an employee because the employee fails to adhere to sexual stereotypes, claims based on discrimination because of transgendered status alone are not actionable. However, the EEOC, in collaboration with the Justice Department has declared that discrimination based on gender identity or transgender status is sex discrimination, as part of the EEOC’s Strategic Enforcement Plan, and the EEOC has filed recent lawsuits alleging transgender discrimination under Title VII. [“Justice Department Files Lawsuit Alleging that Southeastern Oklahoma State University Discriminated Against Transgender Woman,” EEOC Press Release, Mar. 30, 2015, http://www.eeoc.gov] This follows the Commission’s ruling that held discrimination based on transgendered status is sex discrimination under Title VII. [Macy v. Dep’t of Justice, EEOC Appeal No. 0120120821, 2012 WL 1435995 (Apr. 20, 2012)] in EEOC v. R.G. & G.R. Harris Funeral Homes, Inc. [2015 WL 1808308 (E.D. Mich. Apr. 23, 2015)], the court denied an employer’s motion to dismiss a sex discrimination claim under Title VII based on termination of a transgender employee. In Fabian v. Hospital of Central Connecticut [2016 WL 1089178 (D. Conn. Mar. 18, 2016)], the court held that discrimination on the basis of transgendered status is discrimination because of sex under Title VII. In Roberts v. Clark County School District [2016 WL 5843046 (D. Nev. Oct. 4, 2016)], the court, after reviewing precedent from other jurisdictions, concluded that discrimination against a person based on transgender status is, in and of itself, discrimination because of sex under Title VII.