News Law and Policy

First-Ever Civil Rights Lawsuit Filed on Behalf of Transgender Workers

Jessica Mason Pieklo

The lawsuits are the first to enforce transgender workers' rights under Title VII of the Civil Rights Act.

The federal agency charged with enforcing workplace anti-discrimination laws, in first-of-their-kind complaints, accused two companies of discriminating against transgender employees in violation of federal law.

It’s the first time the federal government has sued to protect transgender rights under the Civil Rights Act of 1964. In two complaints, filed Thursday by the Equal Employment Opportunity Commission (EEOC) in federal courts in Michigan and Florida, the commission alleges that two employees faced workplace discrimination because they are transgender.

According to the EEOC, Detroit-based R.G. & G.R. Harris Funeral Homes, Inc. discriminated based on sex in violation of federal law by firing a Garden City, Michigan, funeral director-embalmer because she is transgender. Amiee Stephens had been employed by Harris as a funeral director and embalmer since October 2007.

Stephens in 2013 gave Harris a letter explaining she was undergoing a gender transition from male to female and would soon start to present in appropriate business attire at work, consistent with her gender identity as a woman. Two weeks after notifying the company of her transition, Harris’ owner fired Stephens, telling her that what she was “proposing to do” was unacceptable.

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“Title VII prohibits employers from firing employees because they do not behave according to the employer’s stereotypes of how men and women should act, and this includes employees who present themselves according to their gender identity,” EEOC Indianapolis regional attorney Laurie Young, whose jurisdiction includes Michigan, said in a statement announcing the lawsuit.

The EEOC, in a second lawsuit, accused Lakeland Eye Clinic, a Lakeland, Florida-based organization of health-care professionals, of violating Title VII by firing an employee because she is transgender and did not conform to the employer’s gender-based expectations, preferences, or stereotypes.

The allegations in the Lakeland lawsuit are very similar to those in the Harris Funeral Homes lawsuit. Lakeland Eye Clinic fired an employee after she informed them she was transgender and intended to start presenting as a woman, according to the EEOC.

In both cases the commission argues the employees are entitled to restitution for back pay, reinstatement or front pay, and punitive damages to protect against future discrimination against other employees.

The lawsuits are the latest evidence of efforts within the EEOC to advance the issue of workplace equality for transgender employees.

The commission in December 2012 adopted a Strategic Enforcement Plan (SEP) that includes “coverage of lesbian, gay, bisexual and transgender individuals under Title VII’s sex discrimination provisions” as a top enforcement priority of the commission. The commission in 2012 decided that discrimination against transgender people is “sex discrimination” within the meaning of Title VII’s ban on employment discrimination in the case of Macy v. Holder.

That case involved claims brought by a federal employee against the Bureau of Alcohol, Tobacco, Firearms and Explosives. In Macy v. Holder the commission ruled that 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.

The decision in Macy v. Holder is precedent for transgender discrimination claims made against the federal government. Thursday’s lawsuits are the first to seek to enforce the rights of transgender workers in the private sector.

Culture & Conversation Law and Policy

The Modern Struggle Over Anti-Trans Bathroom Laws Has Its Roots in Decades of Title VII Fights

Jessica Mason Pieklo

Because of Sex: One Law, Ten Cases, and Fifty Years That Changed American Women’s Lives at Work, written by Gillian Thomas, senior staff attorney with the American Civil Liberties Union Women’s Rights Project, goes beyond cases that helped shape workplace anti-discrimination policies. Rather, it focuses on ten key women whose own lives changed the law.

In 1966, Ida Phillips, a single mother working as a waitress, sat down at her kitchen table and wrote a letter to then-President Lyndon B. Johnson. She told him her story: Despite her qualifications, Phillips had been told by a Martin Marietta employee not to apply for an assembly-line position at one of the construction-material company’s manufacturing plant. The job would have paid more than double what she was making as a waitress. It included a pension plan and insurance, benefits unavailable in most female-dominated industries at the time (and which since have only marginally improved.) The reason Phillips was turned away? She was a woman with a preschool child.

That letter, Phillips’ subsequent lawsuit, and her Supreme Court win would help spark a civil rights revolution in the workplace—one with consequences that reverberate today.

So opens Because of Sex: One Law, Ten Cases, and Fifty Years That Changed American Women’s Lives at Workwritten by Gillian Thomas, senior staff attorney with the American Civil Liberties Union (ACLU) Women’s Rights Project. Despite its full title, though, Because of Sex goes beyond cases that helped shape workplace anti-discrimination policies, focusing on ten key women whose own lives changed the law.

Title VII of the Civil Rights Act of 1964 prohibits employment discrimination based on race, color, religion, sex, and national origin. And it was Phillips’ case, and the nine others profiled in the book, that would ultimately shape that law into one that, decades later, is an important tool in advancing gender and sex equality. As Thomas explained to Rewire in an interview, Title VII it is not just a foundational piece of civil rights legislation important for its historical effect on workplace equality. In the face of anti-transgender bathroom bills and statewide “religious liberties” legislation sweeping the country, it is a crucial tool for pushing equality forward.

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Thomas’ book is organized along three key themes in employment discrimination law: pregnancy-related workplace policies, gender stereotypes in the workplace, and sexual harassment. Those themes act as an inroad toward thinking more broadly about how, in Thomas’ words, we achieve “substantive equality” in the workplace. They illustrate how early fights over promotions and workplace policies that kept women out of certain jobs due to concerns of harming their potential fertility foreshadowed the legal showdowns over contraception coverage in employee health-care plans in cases like Burwell v. Hobby Lobby and Zubik v. Burwell.

“The subject matter areas that I saw [as a researcher and employment discrimination litigator] were, number one, women’s capacity for pregnancy, and then their subsequent roles as mothers, which, historically, has played a huge role in their second-class status legally,” Thomas told Rewire. “Women of color have always been seen as workers, irrespective of whether they had children, so that’s not an entirely universal stereotype. But I think it’s pretty safe to say that generally pregnancy and motherhood have proven to be enormous conflicts in terms of what equality looks like when you have these distinct differences” in how race and gender are perceived.

Take, for instance, the case of Peggy Young and the question whether an employer can refuse to make on-the-job accommodations for pregnant employees when it does so for nonpregnant employees. Young, another one of the women featured in Thomas’ book, was a United Parcel Service (UPS) “air driver” who became pregnant. When Young told her employer she was pregnant, UPS told her they couldn’t accommodate the light-lifting recommendation made by Young’s medical providers. Instead, UPS told Young, she would have to take unpaid medical leave for the remainder of her pregnancy.

In March 2015, the U.S. Supreme Court ruled against UPS, vacating the Fourth Circuit Court of Appeals ruling that had supported UPS’ policy. The decision produced a new test for assessing pregnancy discrimination claims and sent Young’s case back to the lower courts for another look. Not long after the Roberts Court’s decision, UPS and Young settled the lawsuit, bringing an end to Young’s case.

The decision was a qualified win for advocates. The Roberts Court had accepted Young’s argument that UPS had no legitimate business reason for failing to accommodate her particular request, but the decision went short of ruling businesses must accommodate any pregnancy request.

But Because of Sex doesn’t stop at unpacking overt discrimination like the kind detailed in Young’s 2015 case or Phillips’ one in 1966. The book also takes a look at what the law has described as more “benevolent” kinds of discrimination. These include employment policies designed to “protect” women from endangering possible future pregnancies, such as prohibiting women employees from working jobs where they may be exposed to hazardous chemicals.

“It really all boils down to two issues that we are talking about in all these things,” Thomas explained, when discussing workplace policies that, employers have argued, were put in place to protect their female employees from potentially endangering a pregnancy. “One is [employers] ignoring hazards that apply to men and making women into baby-making machines. And number two is [employers] treating health effects or health hazards on the job as reasons for diminishing women’s opportunities, instead of arming women with information and assuming that they will make the right choice for themselves.”

This disconnect is most apparent in the case of United Automobile Workers vJohnson Controls, Inc., another case Thomas highlights in her book. In 1982, the car battery manufacturer Johnson Controls sent a memorandum to all its employees that said “[w]omen who are pregnant or who are capable of bearing children will not be placed into jobs involving lead exposure or which would expose them to lead through the exercise of job bidding, bumping, transfer or promotion rights.”

The policy amounted to a demotion for many female employees and a closed door for others.

Title VII actually permits employers, in a limited context, to have employment policies that discriminate on their face, such as policies that permit churches to only hire members of the same faith. Johnson Controls argued its policy of keeping women out of certain positions due to employer concerns of health risks to future pregnancies fit within Title VII’s narrow window for permitting explicit discrimination.

The Supreme Court would eventually rule in 1991 that Johnson Controls’ policy violated Title VII because it forced female employees to have to choose “between having a child and having a job,” thereby rejecting the argument made by Johnson Control’s that a woman’s fertility—or infertility—can in most situations be considered a bona fide occupational qualification.

As Thomas noted in her book, “It was no coincidence that fetal protection politics were most prevalent in well-paid, unionized industries from which women historically had been excluded. Indeed they had been excluded precisely because they had been deemed physically unsuited for the dirty, sometimes strenuous work.”

But “in female-dominated fields, though, fetal protection policies made no business sense; they effectively would gut the workforce. That reality apparently trumped any hypothetical harm to employees’ future pregnancies,” Thomas wrote.

In other words, these policies didn’t exist in female-dominated fields.

Johnson Controls may have helped grant women the agency to determine how and when they earned a paycheck with regard to policies targeting their potential fertility, but it hardly ended the debate around when and how employers attempt to diminish women’s opportunities related to their roles as potential mothers. This has played out in the hundreds of lawsuits over the contraception benefit, for example.

In other words, if Johnson Controls had settled the question of whether a woman’s fertility was an appropriate grounds for discrimination, we would not have Hobby Lobby.

Because of Sex draws another connection between the historical fight over Title VII and the contemporary one: How do employers adjust workplace policies around shifting gender norms, and when is it discriminatory if they don’t?

The law asks, “What are women supposed to want to do?” said Thomas in her interview with Rewire. “What work are they able to do? What work do they want to do? [Given] assumptions and stereotypes that are about their abilities, their preferences, their interests and how [they are] conforming to [those] in terms of stereotypes about what femininity is—what [are] women … supposed to look and act like?”

Gender nonconforming behavior, and the manner in which employees experience discrimination as a result of that behavior, is a key component over the debate around transgender rights. But it would take a “shrill” woman and the birth of the notion of “workplace harassment” to get us and the law there first.

By every measure, Ann Hopkins should have been made a partner in the global accounting firm Price Waterhouse. She was smart. Ambitious. Worked hard and constantly outperformed her peers. But it was those very attributes that her male partners deemed “too aggressive” or as evidence that she needed “charm school,” and ultimately used to deny her a partnership that by every objective measure she had earned.

The Supreme Court would ultimately disagree. In 1989, it ruled Hopkins should have been made a partner and that the comments relating to her demeanor amounted to improper gender stereotyping, a violation of Title VII’s sex discrimination provisions.

If Hopkins was initially shut out of workplace advancement due to her defiance of feminine stereotypes, so too are women subjected to on-the-job harassment, as Thomas draws out in Because of Sex. “Sexual harassment didn’t even have a name in 1974, but was such a prevalent force driving women out of the work force, driving them into different jobs [and] subjugating them just generally in terms of the identity as sexual objects on the job,” Thomas further explained in her interview.

1974 was the year Mechelle Vinson first hired a lawyer to represent her in a case against her boss, who was chronically sexually abusing her on the job. But at the time, courts largely wrote off those kinds of complaints as a kind of chasing-around-the-office, and not sexual harassment, or in Vinson’s case, on-the-job rape. As described by Thomas in her book, “throughout the 1970s, many courts responded to complaints about abusive bosses with a collective shrug that conveyed, ‘You can’t blame a guy for trying.'”

“Sexual harassment was such a prevalent force driving women out of the workforce, driving them into different jobs, and subjugating them just generally in terms of the identity as sexual objects on the job,” Thomas told Rewire.

That “you can’t blame a guy for trying” attitude hasn’t completely gone away as far as the federal courts are concerned. After all, in 2013 the Roberts Court in Vance v. Ball State made it even harder for employees to bring workplace harassment suits, and employees still face losing jobs for “being too cute” or having their sexuality be a perceived threat to their employer’s ability to remain professional in the workplace.

Which is why, in the fight over transgender bathroom access in 2016, Title VII should be a powerful force in defeating these latest attempts to stymie social progress. The idea that “you can’t blame a guy for trying” has morphed into “how the hell can we police gender roles if we don’t know where you pee.” That’s thanks almost entirely to the manner in which the law has wrestled with gender stereotypes under Title VII, Thomas explained.

In 2012, the Equal Employment Opportunity Commission (EEOC), the federal agency charged with enforcing workplace anti-discrimination laws, issued the landmark decision Macy v. Holder, which held that employment discrimination based on transgender status was a form of unlawful sex discrimination under Title VII. Then in 2015, it issued a ruling stating that denying employees access to restrooms consistent with their gender identity is also a violation of Title VII. Meanwhile several federal courts of appeals have ruled that Title VII protects against gender identity discrimination.

But the Roberts Court has yet to weigh in.

“I think sexual orientation in a way is the sort of a final frontier” in Title VII litigation, said Thomas. “The court seems really fixated on this idea of analogizing very precisely from Hopkins. In other words, if you look or act in a way that doesn’t conform to gender stereotypes then, OK, [the courts] can understand that’s sex discrimination,” said Thomas. “But if your identity is not conforming to stereotypes in that you, you know, are romantically attracted to someone of your sex, that is harder for [the courts] to get, even though it’s obviously the most obvious manifestation of stereotype.”

This is, in many ways, a fight that started in the workplace—one that eventually got the backing of the Obama administration before becoming a flashpoint of conservative election-cycle politics. Thomas’ book doesn’t close on a prediction of what the next big Title VII fight will be per se, but it is impossible to finish it and not see the narrative threads of the historical fight for workplace equality woven throughout the the contemporary one. Sex. Gender. How the law understands and navigates the two. All this is what makes Thomas’ Because of Sex the closest thing to an assigned reading I can make.

News Human Rights

DOJ Alleges Unfair Labor Practices and Discrimination at Michigan’s Only Women’s Prison

Michelle D. Anderson

The lawsuit, filed on June 13 in a Michigan district court, claims that female correctional officers in the region have been forced to work unfair overtime shifts and have been denied transfers and promotions at the Women’s Huron Valley Correctional Facility in Ypsilanti.

The U.S. Department of Justice (DOJ) filed a lawsuit last week against the State of Michigan and its Department of Corrections, following through on a February notice from the federal agency.

The lawsuit, filed on June 13 in a Michigan district court, alleges that female correctional officers at the Women’s Huron Valley Correctional Facility in Ypsilanti have been forced to work unfair overtime shifts and have been denied transfers and promotions. Huron Valley is the state’s only prison for women.

The DOJ said in a statement that the allegations constituted a pattern or practice of violations related to Title VII of the Civil Rights Act of 1964. The landmark legislation prohibits discrimination in employment on the basis of race, color, sex, national origin, or religion, and was last amended in 2009.

Michigan officials specifically discriminated against its women employees by implementing an “overly broad female-only assignment policy” and by denying their repeated requests for transfers, according to the 19-page lawsuit.

The lawsuit filed last Monday revealed that 28 former and current correctional officers had filed charges in 2010 and 2011 with the Equal Employment Opportunity Commission (EEOC) to challenge the state’s policies. After investigating the charges and finding reasonable cause that Michigan had committed Title VII violations, the EEOC sought conciliation to no avail. It ultimately referred the charges to the DOJ.

“Qualified male and female correctional officers deserve equal opportunities to compete for job assignments and transfers without unnecessary barriers,” said Vanita Gupta, the head of the DOJ’s Civil Rights Division and the principal deputy assistant attorney general, in the statement.

Michigan Corrections Department spokesperson Chris Gautz told Rewire the department did not have a statement at the time and that it typically does not comment on pending litigation. Representatives from Republican Gov. Rick Snyder’s office did not respond to an email from Rewire on Friday.

The complaint alleges that the corrections department began its discriminatory practices in 2009, just a year after it consolidated its three adult female correctional facilities into one location. That year, the state designated 11 positions at Huron Valley as “female-only,” including food service, yard control, property room, and electronic monitor officer positions.

According to the lawsuit, Michigan officials only lifted the “female-only” restrictions on some of the positions earlier this month. And two months prior, in April 2016, the state offered a limited transfer opportunity to five women correctional officers, but that did not change an existing transfer freeze that has kept several women officers from being promoted or moved to facilities closer to their homes.

Despite the transfer freeze, several eligible male officers in the last six years have been allowed to move to other facilities throughout the state, while women officers were forced to stay in old positions and work consecutive overtime shifts, the suit claims.

Huron Valley, the overcrowding challenges of which were publicized by the Detroit Free Press in 2015, has about 2,200 inmates and a 85 percent female-majority correctional officer staff, according to the lawsuit. In 2012, the U.S. Government Accountability Office (GAO) published a study about overcrowding at federal prisons, concluding that correctional institutions that are over capacity have a negative effect on inmates, staff, and infrastructure.

The report noted that inmates in particular were more likely to experience factors leading to increased inmate misconduct, comprising the safety and security of other inmates. Others studies, such as 2007 research from the Clinical Infectious Diseases journal, noted that people in prisons are at a higher risk for acquiring blood-borne pathogens, sexually transmitted infections, and methicillin-resistant Staphylococcus aureus infections, and that overcrowding only exacerbates the problem.

Former Huron Valley correctional officer Latasha Clements, in an email obtained by the Detroit Free Presswrote to prison, union, and legislative leaders that the facility’s mandatory overtime shifts—caused by its shortage of female corrections officers—had led her to quit her job.

The email included the statement that “constant mandating, three and four days consecutively” had caused her physical and emotional health to deteriorate, and negatively affected her ability to adequately care for her husband and children.

The former state prison worker was one of a dozen Huron Valley corrections officers who quit their jobs in the last six months, according to the Detroit Free Press report.

The DOJ lawsuit demands a jury trial and a court order requiring Michigan to end discriminatory job assignment and transfer policies. The DOJ has also requested monetary damages for the affected correctional officers, and an order for the state to develop and implement lawful and effective measures to prevent further discrimination.

Barbara L. McQuade, the U.S. attorney for the Eastern District of Michigan, said in an official statement that the lawsuit does not challenge “positions where it makes sense to assign only female officers,” but rather the practice of limiting “positions that are not justifiably related to inmate privacy to women officers.”

The DOJ lawsuit is not the first legal act the federal government has brought against the State of Michigan. In 1997, the United States sued Michigan under the Civil Rights of Institutionalized Persons Act for violating the constitutional rights of women inmates by not protecting them from sexual misconduct and unlawful invasions of privacy.