Appeal of Gender Identity Discrimination Lawsuit Takes an Unusual Turn

Gender identity and gender expression are protected categories under New York City’s employment discrimination statute. Federal law does not expressly address this type of discrimination, and the Supreme Court has not ruled on the issue. Several federal courts have taken steps toward recognizing this as a federal claim, and the Equal Employment Opportunity Commission (EEOC) has recognized it as a valid claim in its own rulings. Recent changes in Washington, however, have raised concerns about the EEOC. After the EEOC appealed the dismissal of a gender identity discrimination lawsuit to the Sixth Circuit, the complainant filed a motion to intervene on her own behalf in early 2017. She cited concern “that the EEOC may no longer adequately represent her interests going forward.” EEOC v. R.G. & G.R. Harris Funeral Homes, No. 16-2424, motion to intervene (6th Cir., Jan. 26, 2017). The court granted the motion in March.

The U.S. Supreme Court has held that Title VII of the Civil Rights Act of 1964 prohibits discrimination that derives from an employee or job applicant failing to conform to common stereotypes about how people of their particular sex or gender should look or act, also known as “sex stereotyping.” Price Waterhouse v. Hopkins, 490 U.S. 228 (1989). Several federal courts and the EEOC have cited Price Waterhouse in ruling that gender identity and gender expression discrimination constitute unlawful sex stereotyping under Title VII. See, e.g., Macy v. Holder, App. No. 0120120821, dec. (EEOC, Apr. 20, 2012).

The complainant in R.G. & G.R. Harris, a transgender woman, alleged discrimination on the basis of gender identity and expression. The complainant informed the defendant of her intention to transition from male to female after several years of employment there. Although she reportedly stated that she would abide by the dress code for female employees, the defendant fired her several weeks later. The EEOC filed suit the following year.

The district court dismissed the EEOC’s gender identity discrimination claim but allowed its sex stereotyping claim to proceed. 100 F.Supp.3d 594 (E.D. Mich. 2015). The court later dismissed the case, however, after finding that the defendant was entitled to a religious exemption. 201 F.Supp.3d 837 (E.D. Mich. 2016). The EEOC filed an appeal in the Sixth Circuit in October 2016. In the following January, a new administration took over the White House, leading to numerous concerns about the future of federal efforts to enforce various areas of anti-discrimination law. The complainant filed her motion to intervene amidst these concerns.

The EEOC did not respond to the motion to intervene, but the defendant opposed it. In an order issued in March, the court noted that the motion appeared untimely, coming more than two years after the EEOC filed suit on her behalf. Timeliness is not the only consideration, however, and the court observed that “[u]ntil recently, [she] had no reason to question whether the EEOC would continue to adequately represent her interests.” R.G. & G.R. Harris Funeral Homes, order at 2 (6th Cir., Mar. 27, 2017). It further found that “[t]he EEOC’s recent actions imply that the new administration will less aggressively pursue transgender rights” and that “the totality of the circumstances supports permitting her to intervene.” Id.

The experienced and knowledgeable transgender discrimination attorneys at Phillips & Associates advocate on behalf of New York City employees, job seekers, and former employees in claims for unlawful practices like gender identity and gender expression discrimination. Contact us online or at (212) 248-7431 today to schedule a free and confidential consultation to discuss your case.

More Blog Posts:

Federal Caselaw Regarding Employment Discrimination Based on Sexual Orientation May Offer a Guide for Claims of Gender Identity and Gender Expression Discrimination, New York Employment Attorney Blog, July 7, 2017

Federal Court Rules on Gender Identity Employment Discrimination Claim, New York Employment Attorney Blog, December 8, 2016

General Services Administration Issues New Regulation Regarding Transgender Rights in the Workplace, New York Employment Attorney Blog, November 16, 2016

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