Case of Fired Transgender Worker Raises Questions About Title VII

    Courts have ruled differently on whether federal law protects ‘gender identity’

By Dana Wilkie Jan 15, 2015

Unfolding in a Texas court is the case ofLeyth Jamal, who claims in her lawsuit against Saks & Co. that because she is transgender, co-workers belittled her, forced her to use the men’s room and referred to her with male pronouns before her supervisors eventually fired her.

The luxury retail store’s response to the suit has captured national attention: Saks lawyers wrote in a Dec. 29, 2014, filing that the company was within its rights to fire Jamal because although sex discrimination may be against the law, that’s not the same as discriminating against someone because of what the lawyers called a “sexual identity disorder.”

At issue is how the U.S. District Court for the Southern District of Texas will apply the conflicting rulings on transgender protections that previous courts have handed down, as well as how it will interpret Title VII of the Civil Rights Act of 1964, which has no specific prohibition against transgender discrimination.

The federal case law on the question of transgender protections is far from settled, which often leaves HR departments relying on local or state statues (18 states prohibit discrimination based on sexual orientation and gender identity). But in the absence of such laws—for instance, Texas has no such prohibition—HR managers across the nation will be watching to see if the court joins others that have interpreted Title VII as protecting transgender workers, or sides with the minority of courts that have ruled that it doesn’t.

Title VII prohibits “sex discrimination,” but not “gender identity discrimination.”

For that reason, Saks in December 2014 petitioned the court to dismiss Jamal’s case, arguing that it is “well settled” that transgender people aren’t protected under Title VII. They quoted from a 1984 7th Circuit ruling that said sex discrimination is not synonymous with “discrimination based on an individual’s sexual identity disorder or discontent with the sex into which they were born.”

Tiffany Bourre, a Saks spokeswoman, said her company's "overall commitment to support the LGBT community is clear and unequivocal."
"Moreover, Saks believes that all persons are protected against sex discrimination under Title VII," Bourre wrote in an email. "However, that is not what we believe the plaintiff has asserted in this case."
Shannon Minter, legal director for the National Center for Lesbian Rights, said most courts that have considered similar cases in the past few years have held that Title VII prohibits discrimination against transgender people.

“There is no need for Title VII to specifically use the term ‘transgender,’ since discrimination because a person has changed his or her sex is plainly sex discrimination,” Minter said. “Just as discrimination because a person has changed his or her religion would be religious discrimination.”

Other courts, however, have ruled that in the absence of local or state laws, transgender workers don’t have protections.

The question of federal protection for transgender workers may not be settled until the Supreme Court addresses the issue.

Ilona Turner, legal director at the Transgender Law Center, said that if the Texas court were to rule against Jamal, “it could be appropriate for the Supreme Court to take up the case and confirm what the vast majority of federal courts to consider the issue in recent years have held: that Title VII should in fact be understood to cover discrimination against transgender employees.”

Said Minter: “In the past, there was a question about whether Title VII protected male employees who were sexually harassed by other male employees. Some courts held that it did, others held that it did not. The Supreme Court eventually settled the question by holding that Title VII does prohibit workplace harassment of men by other men. Most courts have now held that Title VII protects transgender workers, and that issue will eventually likely be definitively settled by the Supreme Court as well.”

As for the U.S. Equal Employment Opportunity Commission (EEOC), it has interpreted Title VII to provide protections for transgender employees. It ruled in April 2012 in Macy v. Holder that an employer who discriminates against an employee or applicant because of the person’s gender identity is violating the prohibition on sex discrimination contained in Title VII.

Turner’s Transgender Law Center brought the case on behalf of Mia Macy, a military veteran and a former police detective. She was denied a job as a ballistics technician at the Walnut Creek, Calif., laboratory of the federal Bureau of Alcohol, Tobacco, Firearms and Explosives after coming out as transgender.

“Dozens of federal court and administrative decisions—virtually every court to consider the question in the past 15 years—have recognized that Title VII’s existing prohibition of sex discrimination protects transgender people from discrimination, because discrimination against a transgender person is always in some way related to that person’s sex and a perception that they go against some sort of sex stereotype,” Turner said. “Only a tiny minority of courts have come out the other way.”

Jennifer Levi, Transgender Rights Project Director of Gay & Lesbian Advocates & Defenders, said that courts have sided with transgender plaintiffs “sometimes because adverse action taken against them based on their gender identity is prohibited sex stereotyping,” and sometimes because “increasingly, courts have acknowledged the intrinsic connection between a person’s sex and his/her transgender identity.”

In September 2014, the EEOC filed two lawsuits against companies accused of discriminating against transgender employees. One lawsuit was filed on behalf of Aimee Stephens of Michigan, against R.G. and G.R. Harris Funeral Homes. The other was filed on behalf of Brandi Branson of Florida, against Lakeland Eye Clinic, P.A. Both plaintiffs are transgender women who claim their employment was terminated because of transgender bias.

At an EEOC hearing Jan. 14, 2015, on harassment in the workplace, Carol Miaskoff, the EEOC’s acting associate legal counsel, said that “sex harassment is more than only sexual harassment; it also includes conduct that denigrates someone … based on the perception that the individual doesn’t conform to culturally created gender norms.”

In recent years, there have been government policy positions and rulemakings that have afforded the transgender community greater protections against employment discrimination. For instance, in September 2012, the U.S. Department of Health and Human Services clarified that provisions in the Patient Protection and Affordable Care Act prohibiting sex discrimination in health insurance applied to transgender people.

Dana Wilkie is an online editor/manager for SHRM. ​

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