EEOC sues companies for firing transgendered employees

The Obama administration is suing two businesses for firing employees who were “transitioning” from male to female.

The U.S. Equal Employment Opportunity Commission (EEOC) filed lawsuits against the companies on the same day last month, alleging they are guilty of violating the 1964 Civil Rights Act’s prohibition against discrimination on the basis of a person’s sex.

Amiee Stephens worked at R.G. & G.R. Harris Funeral Homes, Inc., in Garden City, Mich., as a funeral director and embalmer for six years when she informed the company in 2013 she was undergoing a gender transition from male to female, and would soon start to “present” in business attire at work consistent with her new gender, according to the EEOC’s press release. Two weeks later, the EEOC claims, Stephens was fired because “what she was ‘proposing to do’ was unacceptable.”

Lakeland Eye Clinic, located 35 miles east of Tampa in Lakeland, Fla., hired Brandi Branson in July 2010 as director of hearing services, the Miami Herald reported. Branson went by Michael when started working at the clinic and presented himself as male. But six months later, Branson began wearing makeup and women’s clothing, and experienced teasing at work. Physicians stopped referring patients to her, even though she was performing her job satisfactorily, the suit claims. The clinic fired Branson in June 2011, saying her position was being eliminated. But the clinic hired a replacement two months later, according to the Miami Herald.

No federal statutes prohibit employment discrimination based on gender identity or expression. But in recent years, the EEOC has pursued protections for transgendered workers under the Civil Rights Act’s Title VII prohibition against sex discrimination and harassment. In 2012, the agency issued its first ruling on the issue when a transgendered woman claimed she was denied federal employment because she informed the employer she was transitioning from male to female. The landmark ruling stated intentional discrimination based on gender identity or a change of sex is a form of sexual discrimination, and thus prohibited under Title VII.

The EEOC’s strategic plan lists one of its six national priorities as “addressing emerging and developing issues,” including “coverage of lesbian, gay, bisexual, and transgendered individuals under Title VII’s sex discrimination provisions.” The lawsuits filed on Sept. 25 mark the EEOC’s first attempt to push private companies to get behind its new definition of sex discrimination.

The Office of Personnel Management, the federal agency that manages government employees, offers advice to businesses who employ people who are in transition from one gender to another. The agency notes a “healthy” gender transition requires an individual to “experience full-time living” in his or her “identified gender” for at least a year prior to gender reassignment surgery.

Once a person begins transition, supervisors should be “sensitive” and prohibit gossiping while applying company policy and protocol for the person’s new gender, such as using their new name with appropriate pronouns, adherence to the new gender’s dress code, and access to bathroom and locker room facilities. “A reasonable temporary compromise may be appropriate in some circumstances” regarding restrooms, but the individual cannot be required to provide proof of any medical procedures.

Company human resource departments are directed to change all paperwork, including health insurance, to reflect the person’s new gender. In addition, employers are forbidden from dropping an employee’s legally married spouse from any insurance plan, as “the transition does not affect the validity of that marriage.”