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.

Analysis Law and Policy

Federal Court Says Trans Worker Can Be Fired Based on Owner’s Religious Beliefs

Jessica Mason Pieklo

“Plain and simple, this is just discrimination against a person because of who she is,” said John Knight, the director of the LGBT and HIV Project of the American Civil Liberties Union of Illinois, in an interview with Rewire.

When the U.S. Supreme Court ruled in 2014 in Burwell v. Hobby Lobby that the owners of secular for-profit businesses could challenge laws they believed infringed on their religious liberties, civil rights advocates warned that the decision was just the start of a new wave of litigation. On Thursday, those predictions came true: A federal district judge in Michigan ruled that a funeral home owner could fire a transgender worker simply for being transgender.

The language of the opinion is sweeping, even if the immediate effect of the decision is limited to the worker, Aimee Stephens, and her boss. And that has some court-watchers concerned.

“Plain and simple, this is just discrimination against a person because of who she is,” said John Knight, the director of the LGBT and HIV Project of the American Civil Liberties Union of Illinois, in an interview with Rewire.

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According to court documents, Stephens, an employee at Detroit’s R.G. & G.R. Funeral Homes, gave her boss—the business’ owner—a letter in 2013 explaining she was undergoing a gender transition. As part of her transition, she told her employer that she would soon start to present as a woman, including dressing in appropriate business attire at work that was consistent both with her identity and the company’s sex-segregated dress code policy.

Two weeks later, Stephens was fired after being told by her boss that what she was “proposing to do” was unacceptable and offensive to his religious beliefs.

In September 2014, the Equal Employment Opportunity Commission (EEOC) filed a lawsuit on behalf of Stephens, arguing the funeral home had violated Title VII of the federal Civil Rights Act, which prohibits employment discrimination. According to the EEOC, Stephens was unlawfully fired in violation of Title VII “because she is transgender, because she was transitioning from male to female, and/or because she did not conform to the employer’s gender-based expectations, preferences, or stereotypes.”

Title VII of the Civil Rights Act allows those employees who have been discriminated against in the workplace to collect money, known as civil damages. Those damages usually come in the form of lost wages, back pay, and funds to make up for—to some degree—the abuse the employee faced on the job. They are also designed to make employers more vigilant about their workplace culture. Losing an employment discrimination case for an employer can be expensive.

But attorneys representing Stephens’ employer argued that the Religious Freedom Restoration Act (RFRA) protected their client from legal liability for firing Stephens. On Thursday, a federal court agreed. It said that paying such damages for unlawfully discriminating against an employee could amount to a substantial burden on an employer’s religious beliefs. 

According to the court, despite the fact that Stephens’ boss admitted he fired her for transitioning, and despite the fact that the court found this admission to be direct evidence of employment discrimination, RFRA can be a defense against that direct discrimination. To use that defense, the court concluded, all the funeral home owner had to do was assert that his religious beliefs embraced LGBTQ discrimination. The funeral home had “met its initial burden of showing that enforcement of Title VII, and the body of sex-stereotyping case law that has developed under it, would impose a substantial burden on its ability to conduct business in accordance with its sincerely-held religious beliefs,” the court wrote.

In other words, Hobby Lobby provides employers a defense to discriminating against LGBTQ people on the basis of religious beliefs.

“The RFRA analysis is extremely troubling, and the implications of it [are] as well,” said Knight. “I believe this is the first case applying RFRA to a Title VII claim with respect to nonministerial employees.”

If the scope of the opinion were broader, Knight continued, “this would allow [employers in general] to evade and refuse to comply with uniform nondiscrimination law because of their religious views.”

This, Knight said, is what advocates were afraid of in the wake of Hobby Lobby: “It is the concern raised by all of the liberal justices in the dissent in Hobby Lobby, and it is what the majority in Hobby Lobby said the decision did not mean. [That majority] said it did not mean the end of enforcement of nondiscrimination laws.”

And yet that is exactly what we are seeing in this decision, Knight said.

According to court documents, Stephens’ boss has been a Christian for more than 65 years and testified that he believes “the Bible teaches that God creates people male or female,” that “the Bible teaches that a person’s sex is an immutable God-given gift, and that people should not deny or attempt to change their sex.” For Stephens’ former boss, Stephens’ transition to a woman was “denying” her sex. Stephens had to be fired, her boss testified, so that he would not be directly complicit in supporting the idea that “sex is a changeable social construct rather than an immutable God-given gift.”

If the “complicit in denying God’s will” sounds familiar, it should. It has been the exact argument used by businesses challenging the birth control benefit of the Affordable Care Act. Those business owners believe contraception is contrary to God’s will and that complying with federal law, which says birth control should be treated in insurance policies as any other preventive service, makes them complicit in sin. Thursday’s decision cites Hobby Lobby directly to support the court’s conclusion that complying with federal nondiscrimination law can be avoided by asserting a religious objection.

Think of the implications, should other courts follow this lead. Conservatives have, in the past, launched religious objections to child labor laws, the minimum wage, interracial marriage, and renting housing to single parents—to name a few. Those early legal challenges were unsuccessful, in part because they were based on constitutional claims. Hobby Lobby changed all that, opening the door for religious conservatives to launch all kinds of protests against laws they disagree with.

And though the complaint may be framed as religious objections to birth control, to LGBTQ people generally, and whatever other social issue that rankles conservatives, these cases are so much more than that. They are about corporate interests trying to evade regulations that both advance social equity and punish financially those businesses that refuse to follow the law. Thursday’s opinion represents the next, troubling evolution of that litigation.

CORRECTION: This article has been updated to clarify John Knight’s position with the American Civil Liberties Union of Illinois.

News Law and Policy

Obama Administration Once Again Steps Up for Transgender Rights

Jessica Mason Pieklo

A regulation to be published this week mandates all employees and visitors at federally operated facilities have access to restrooms that align with their gender identity.

The Obama administration this week made another push for advancing transgender rights, announcing a new regulation that requires all people at federally operated facilities, whether an employee or visitor, have access to restrooms consistent with their gender identity.

As reported by Buzzfeed, the regulation, which will be posted this week in the Federal Register, will affect thousands of people and about 9,200 properties operated by the federal government. Those facilities employ roughly 1 million federal civilian workers.

The regulation makes clear that transgender people do not need to complete any medical procedure to qualify to use the restroom that aligns with their gender, nor can transgender people be restricted to single-occupancy restrooms.

This is the latest move by the Obama administration to advance transgender rights in both the workplace and schools. Federal agencies such as the Equal Employment Opportunity Commission and the U.S. Department of Education have issued guidances that state discriminating against transgender people by mandating they use restrooms and facilities that align with their biological sex rather than their gender identity violates federal civil rights laws.

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More than 20 states run by Republican lawmakers have pushed back against the administration’s efforts to protect transgender people from discrimination at work and at school, filing a federal lawsuit arguing the Obama administration has overstepped its authority in issuing the guidance. Those lawsuits argue that legal bans on sex discrimination do not cover transgender rights.

That question—whether existing civil rights laws and their prohibitions on sex discrimination prohibit discrimination against transgender people—could be the next big civil rights case to land before the Supreme Court.

A Virginia county school board adopted a policy that mandates students in their schools use restrooms that align with their biological sex rather than gender identity. Gavin Grimm, a Virginia student, challenged the policy, arguing it violated his civil rights.

Both a federal court and the Fourth Circuit Court of Appeals agreed with Grimm and blocked the school from enforcing the policy. The Roberts Court this month stepped in and ruled the policy should take effect while the Court considers the school board’s request to take Grimm’s case next term. In the meantime, Grimm will start the school year with his school’s policy in place.

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