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In furtherance of its push for protections against sexual orientation discrimination, the Equal Employment Opportunity Commission (EEOC) filed two historic lawsuits on September 25, 2014 challenging transgender discrimination under Title VII of the Civil Rights Act of 1964 (Title VII).

The EEOC filed a suit against Lakeland Eye Clinic, a Lakeland, Florida-based organization of healthcare professionals, for terminating an employee transitioning from male to female, who was performing her job duties in a satisfactory manner, after she began to present as a woman and informed the clinic she was transgender. Likewise, the EEOC filed a suit against Detroit, Michigan-based R.G. & G.R. Harris Funeral Homes, Inc. for discharging a funeral director because she informed them that, as part of her gender transition from male to female, she intended to return to work presenting consistent with her gender identity as a woman. In both cases, the EEOC alleged that the employer discriminated based on sex in violation of federal law by firing an employee because she is transgender, because she was transitioning from male to female, and/or because she did not conform to the employer’s gender-based expectations, preferences, or stereotypes.

Although gender identity and sexual orientation are not explicitly protected by Title VII, the EEOC has previously ruled that employment discrimination against employees because they are transgender, because of their gender identity, and/or because they have transitioned (or intend to transition) is discrimination because of sex, and thus, violates Title VII. Macy v. Dep’t of Justice, EEOC Appeal No. 0120120821. In August 2013, the EEOC Office of Federal Operations’ decision in Couch v. Department of Energy, EEOC Appeal No. 0120131136, connected offensive, anti-homosexual language with sex discrimination by noting that “the words ‘f-g’ and ‘f—ot’ are offensive, insulting, and degrading sex-based epithets historically used when a person is displaying their belief that a male is not as masculine or as manly as they are.” That link turned the comments into unlawful sex discrimination.

THE KEY TAKEAWAY FOR EMPLOYERS IS THAT THE EEOC FAVORS PROTECTING SEXUAL ORIENTATION AND GENDER IDENTITY IN THE WORKPLACE

While some states and municipalities have passed laws protecting employees from discrimination based on sexual orientation and gender identity, a comparable federal law has been unsuccessfully pursued for nearly two decades. As a result, the EEOC adopted a Strategic Enforcement Plan (SEP) in December 2012 to address this type of emerging employment discrimination issue. As plainly set forth in the press releases issued in conjunction with the recent filings, these two lawsuits are being identified as part of the EEOC’s ongoing efforts to implement its SEP, which includes “coverage of lesbian, gay, bisexual and transgender individuals under Title VII’s sex discrimination provisions, as they may apply.”

Although the issue of transgender discrimination is ripe for further litigation, the key takeaway for employers is that the EEOC favors protecting sexual orientation and gender identity in the workplace. Employers should be mindful of the EEOC’s expansive reading of Title VII to include protection of sexual orientation and gender identity when making employment decisions and expect the EEOC to continue to look for opportunities to bring charges or lawsuits challenging workplace policies or practices that conflict with its position.

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