Articles Posted in Sexual Orientation

Back in April, the EEOC concluded that transgender discrimination is discrimination based on sex and, therefore, violates Title VII. That same month, a federal court denied another employer’s motion to dismiss the sex discrimination claims of a transgender employee. However, in denying the motion to dismiss, the court did not conclude that transgender discrimination is sex discrimination. Rather, it reaffirmed that Title VII prohibits sex stereotyping; i.e., when an employer takes action because an employee does not conform to the employer’s sex- or gender-based preferences, expectations, or stereotypes.

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Exactly one month ago, I addressed what many consider to be the elephant in the room when it comes to transgender employees: bathroom use.

On Wednesday, EEOC Commissioner Chai Feldblum fired off a series of tweets (1, 2, 3, 4, 5, 6, 7) to lawyers representing employers and employees. Below (and here) is the one she sent to my side of the bar:

On my speaking boondoggles around the country, what’s the biggest issue I hear from HR professionals involving transgender employees?

Yep, it’s the use of the bathroom.

Folks, it’s not that complicated. But, I’ll get to that in a sec. First, with a tip of the hat to Joshua Block (@JoshACLU), over the weekend, I read this tweet, which links to this story from Jessica Shepherd (@JessShepSaginaw), about a Planet Fitness location in Michigan that received a complaint from a female gym member. This woman complained to the gym about a transgender woman (assigned male at birth; identifies as female) in the woman’s locker room. She then told other gym members that “a man” was using the woman’s locker room.

So Planet Fitness responded. Continue reading

Over the weekend, I joined a Facebook thread discussing a recent federal court complaint filed in Texas by a former Saks employee, Leyth O. Jamal. Ms. Jamal claims that Saks violated Title VII of the Civil Rights Act by discriminating against her because she is transsexual.

Saks claims (here) that the complaint lacks merit because Title VII doesn’t prohibit discrimination against transgender employees.

Writing for Slate.com, Mark Joseph Stern calls out Saks’ “trans-bashing legal strategy” as “legally untenable.” Underscoring the Supreme Court’s decision in Price Waterhouse v. Hopkins, Mr. Stern notes that Title VII forbids sexual stereotyping. For example, in Price Waterhouse, the company allegedly treated Ms. Hopkins differently because she was “macho,” was “tough talking” and used “foul language.” That is, she didn’t conform to the company’s expectations of how a woman should act in the workplace.