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EPLI: On the EEOC’s List: Protection for Transgendered Employees

Recent EEOC Activity Looks at Transgender Discrimination in the WorkplaceRecent EEOC Activity Looks at Transgender Discrimination in the Workplace

Olympic gold medalist Bruce Jenner may be making all the headlines with recent revelations of his transition to becoming a woman, but it’s the Equal Employment Opportunity Commission (EEOC) that’s working to protect transgendered employees under Title VII. Title VII of the Civil Rights Act of 1964 prohibits employment discrimination based on race, color, religion, sex and national origin. 

Transgender is generally defined as a person who identifies with a gender other than the one with which they were born. While there is no federal law that provides explicit protection for transgendered individuals, the legal environment has changed over the last couple of years such that transgendered employees are asserting sex-based discrimination claims under Title VII.

In fact, back in April of 2012, the EEOC confirmed its intention to protect transgendered employees under Title VII, stating that the “commission hereby clarifies that claims of discrimination based on transgender status, also referred to as claims of discrimination based on gender identity, are cognizable under Title VII sex discrimination prohibition …” Then in 2013, the EEOC began tracking sex discrimination charges based on gender identity/transgendered status. According to the EEOC, in the final three quarters of 2013 (January through September), the federal agency received 667 charges raising allegations of sex discrimination related to sexual orientation and 161 charges alleging sex discrimination based on gender identity/transgender status. In the first three quarters of 2014, the EEOC had received 663 charges alleging sex discrimination related to sexual orientation and 140 charges alleging sex discrimination on the basis gender identity/transgender status.

And, just last month, the first lawsuit against a company for transgender discrimination brought by the EECOC was settled. The case involved Lakeland Eye Clinic in Florida over a position that was eliminated after an employee who identified as male began wearing makeup and traditional female clothing to work. The employee was confronted over her appearance and later most of the doctors at the clinic stopped referring eye patients to her. The settlement obtained by the EEOC requires payment of $150,000 to the former employee. Lakeland also agreed to adopt a new gender discrimination policy that prohibits discrimination against an employee who is transgender, because the employee is transitioning from one gender to another, and/or because the employee does not conform to Lakeland’s sex- or gender-based preferences, expectations, or stereotypes. The clinic also agreed to provide training to its managers and employees explaining the prohibition against transgender/gender stereotype discrimination under Title VII, and to provide its management with guidance on handling transgender/gender-stereotype complaints.

Other cases involving allegations of transgender discrimination around the country have also taken place: On March 31, the United States Department of Justice filed a Title VII lawsuit naming Southeastern Oklahoma State University and the Regional University System of Oklahoma over the failure of the University to award tenure to a transgendered woman. In an April, the EEOC ordered the Department of the Army to pay damages to a transgender employee whom it barred from a restroom matching her new identity and referred to her by her previous gender. Also, in April, a transgendered man sued a finance company after he was called into a meeting, shown the dress code policy and asked to sign a form that he would comply with the dress code for female employees.

The takeaway from this recent activity is that employers need to assume that a transgendered employee will be able to sue under Title VII if they are discriminated against or harassed based on their lack of compliance with traditional gender norms. In addition, employers should update their policies on gender discrimination to help minimize potential lawsuits and train employees on these policies.

Moreover, ensuring that Employment Practices Liability Insurance (EPLI) is in place is critical in responding when a business faces allegations of discrimination of any kind or other workplace issues. EPLI provides the coverage needed both for defense costs and settlements or judgments if rendered. Axis Insurance Services can help you with your EPLI insurance program to safeguard your business assets in the event of employment practices allegations. Give us a call at (877) 787-5258.

 

Source: Fox Rothschild LLP, EEOC

 

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Blogged on: May 13, 2015 by Mike Smith
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