Thursday, July 14, 2016

EEOC Continues Focus on LGBTQ Rights with New Lawsuit Alleging Transgender Discrimination

As we’ve discussed in prior posts, a top strategic enforcement focus of the EEOC is protecting LGBTQ individuals from discrimination in the workplace. The EEOC filed its first Title VII lawsuits alleging sex discrimination against transgender individuals in late 2014, and the EEOC’s efforts in this area continue to make headlines.

The EEOC’s most recent suit, filed last week, is against Bojangles Restaurants, Inc., which operates a chain of fast food restaurants in the Southeast portion of the United States. In the lawsuit, the EEOC claims that a transgender woman, Jonathan Wolfe, was subjected to a hostile work environment because of her gender identity and fired from her biscuit maker job at a North Carolina Bojangles restaurant in retaliation for reporting the harassment. According to the suit, the alleged harassment included restaurant managers making offensive comments about Wolfe’s appearance and repeatedly demanding that she engage in behavior and grooming practices that are more stereotypically male. The EEOC also alleges that the restaurant’s management forbade Wolfe from visiting the restaurant off-duty while dressed as a woman and that an assistant manager made harassing remarks about the need “to pray.” In addition, the EEOC alleges that the restaurant’s director prohibited Wolfe from wearing makeup, fake fingernails, or her hair in braids while at work and threatened to terminate her if she did not remove her braids. According to the suit, Wolfe complained on more than one occasion, with no relief, and then was fired on the same day that she called an employee hotline to complain about the restaurant director’s treatment of her.

The suit against Bojangles is one of several currently pending EEOC suits in which the EEOC alleges that transgender discrimination is prohibited by the sex discrimination provision of Title VII of the Civil Rights Act of 1964. The EEOC has also settled several suits of this nature, including with some Minnesota employers. Earlier this year, a Minnesota-based company agreed to pay $115,000 as part of a settlement of one such EEOC suit. In that suit, the EEOC alleged that Deluxe Financial Services Corp. violated Title VII when a transgender woman was subjected to a hostile work environment after she informed her supervisor that she was transgender and began presenting as a woman at work. The suit alleged that the harassment included hurtful epithets, intentional use of the wrong gender pronouns, and refusal to allow the employee to use the women’s restroom. Also, last year, a Florida eye clinic agreed to pay $150,000 to settle an EEOC lawsuit seeking relief for an employee who allegedly was fired after she informed her employer that she was transgender and began presenting as a woman at work.

Employers can expect to see more suits asserting transgender discrimination under Title VII as the EEOC’s focus in this area continues. Courts are still weighing in on whether Title VII does, in fact, prohibit transgender discrimination given that it includes no express language covering gender identity as a protected class. The EEOC’s position, which is resonating with some courts, is that gender identity discrimination is prohibited sex stereotyping discrimination that violates Title VII.  

Apart from Title VII, however, Minnesota employers should be mindful that the Minnesota Human Rights Act does expressly identify gender identity as a protected class and, therefore, prohibits transgender discrimination. While some religious employers may be exempt from aspects of Minnesota’s discrimination laws, most employers are subject to the law’s prohibition on transgender discrimination. Accordingly, those employers should proactively conduct appropriate anti-harassment training for employees and managers and review and update their policies and practices, being mindful of the unique challenges faced by transgender employees. In addition, Minnesota employers should be mindful of the EEOC’s position that transgender employees must be granted access to the restroom that corresponds to the individual’s gender identity. 

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