This is what happens when humans try to interpret and apply imperfect laws.
Some are going to think the laws say one thing, while others will disagree.
That’s what is happening right now when it comes to the treatment of transgender employees in the workplace.
A few months ago, we reported that the Equal Employment Opportunity Commission (EEOC) ushered in a new era of discrimination lawsuits when it brought charges against two separate employers the agency claimed illegally fired transgender workers.
The EEOC said the firings violated the Civil Rights Act, which prohibits employers from discriminating against employees on the basis of sex.
The only problem with the claims: The Civil Rights Act doesn’t specifically address discrimination of transgender employees.
So the EEOC’s claiming transgender discrimination is a form of sex discrimination.
The agency says the lawsuits are part of its ongoing efforts to implement the Strategic Enforcement Plan it adopted in 2012, which lists as a top enforcement priority including “coverage of lesbian, gay, bisexual and transgender individuals under Title VII’s sex discrimination provisions.”
Court shoots down argument
A federal court in Texas has other ideas.
It recently shot down the argument that transgender discrimination is a form of sex discrimination. It says the Civil Rights Act’s Title VII prohibition against sex discrimination doesn’t cover transgender employees suffering harm simply because they are transgender.
It said sex discrimination occurs when an act is motivated by sexual stereotypes — i.e., “women belong in the kitchen” and “men only care about sex” (our examples, not the court’s).
The court said it would be one thing if a transgender employee could prove that alleged discriminatory actions were caused by co-workers perceiving the person’s behavior as not “masculine or feminine enough.” That would help establish that illegal actions were taken on the basis of sex.
But it went on to say courts have been reluctant to extend the sex stereotyping theory to cover circumstances where a transgender employee was discriminated against simply for being a transgender man or woman.
It said Loretta Eure couldn’t show that The Sage Corporation, a truck driving school, committed an act of discrimination because she had no evidence Sage’s actions were “motivated by her failure to act as a stereotypical woman would.”
‘What is that and who hired that?’
Eure was born a female, but presents as a male, and worked as an instructor for the driving school.
Eure claims that one day a national project director for Sage visited Eure’s location and said to Eure’s supervisor, “What is that and who hired that?”
Soon thereafter, Eure was omitted from Sage’s training schedule and called into the national project director’s office. The director then allegedly said, “I’ve never had to deal with something like this?”
Eure then asked,” What do you mean? Because I’m gay?” Eure alleges that the director then claimed Eure was insubordinate.
Eure took the story to the EEOC, which filed a charge against Sage on the basis of sex discrimination.
Sage filed a motion for summary judgment in an attempt to get the claims thrown out, and the court ultimately sided with Sage.
New federal rule
Realizing that court rulings like this are possible without clearer federal guidance, the Department of Labor just announced the creation of a new rule prohibiting discrimination on the basis of sexual orientation and gender identity in the federal contracting workforce.
It will become effective 120 days after being published in the Federal Register, and it’ll apply to employers working under federal contracts.
This will be the first federal code specifically banning employers from discriminating against lesbian, gay, bisexual and transgender (LGBT) employees.
What are non-contractors to do?
Despite the new rule, federal law is still unsettled in this area. So what’s everyone else to do?
The safest bet is to establish policies and training to abolish LGBT discrimination in your workplace. Not only has the EEOC shown that it’s willing to come after employers suspected of such discriminatory practices, but also the new federal contractor rule is a clear sign more expansive employee protections are sure to come from Capitol Hill in this area.