Lawsuit Uses Theory of Employment Discrimination Based on Sex to Assert Claim for Gender Identity Discrimination

Employment discrimination based on gender identity or gender expression remains an uncertain legal matter in many parts of the country, with many seemingly contradictory interpretations of existing law. Federal law does not expressly recognize gender identity and gender expression as protected categories, but the Equal Employment Opportunity Commission (EEOC) has interpreted the prohibitions on sex discrimination in Title VII of the Civil Rights Act of 1964 to include gender identity and expression. The Department of Justice (DOJ), on the other hand, has recently changed its position to the view that Title VII does not apply to these categories. New York gender identity discrimination law protects transgender workers from discrimination at the state level, as well as in many municipalities. A lawsuit filed earlier this year by a transgender woman in a Michigan state court appears to be seeking to apply the EEOC’s position to state law, arguing that sex discrimination inherently includes gender identity and expression. Reed v. McDonald’s Corp., et al., No. 17-007889-CD, complaint (Mich. Cir. Ct., Wayne Cty., May 25, 2017).

The New York State Human Rights Law prohibits employment discrimination on the basis of “sex,” while the New York City Human Rights Law covers discrimination based on “gender.” N.Y. Exec. L. § 296(1)(a), N.Y.C. Admin. Code § 8-107(1)(a). Both statutes define these terms to include gender identity, including when that identity does not match the gender assigned to an individual at birth, and gender expression. 9 CRR-NY 466.13(c), N.Y.C. Admin. Code § 8-102(23).

Federal employment discrimination law does not expressly include gender identity or gender expression in its definition of “sex.” The EEOC, however, has interpreted Title VII as applying to discrimination based on transgender status, citing court opinions regarding stereotypes about sex and gender. See, e.g., Macy v. Dep’t of Justice, EEOC Appeal No. 0120120821 (Apr. 20, 2012). This interpretation of Title VII now conflicts with the DOJ’s view of the statute. Attorney General Eric Holder issued a memorandum in December 2014 directing U.S. Attorneys and DOJ agency heads to apply a similar reading of Title VII to the EEOC. This interpretation was revoked in a memo issued on October 4, 2017.

The plaintiff in Reed began working for the defendant in April 2015. She alleges in her complaint that she almost immediately began to face sexual harassment from both managers and coworkers. Her allegations include a wide range of inappropriate sexual comments and questions, as well as at least one incident of groping by a coworker. She further claims that managers barred her from both public restrooms and required her to use “a filthy, unused bathroom that served as a broom closet.” Reed, complaint at 5. Shortly after she complained to the manager and the owner, she alleges that she was fired.

The lawsuit asserts claims for sex discrimination, hostile work environment, and retaliation under Michigan’s Elliott-Larsen Civil Rights Act. This statute prohibits discrimination on the basis of sex, but its definition of “sex” does not mention gender identity or expression. Mich. Comp. L. §§ 37.2201(d), 37.2202(1). The complaint states that the defendant discriminated against the plaintiff “on the basis of her sex.” Reed at 8.

Phillips & Associates’ sexual orientation discrimination attorneys advocate for the rights of employees, job seekers, and former employees in New York City, helping them assert claims for unlawful practices like gender identity discrimination. To schedule a free and confidential consultation with our experienced and knowledgeable team, contact us today online or at (212) 248-7431.

More Blog Posts:

New York Lawsuit Seeks Confirmation of Arbitration Award in Favor of Plaintiff Claiming Sex Stereotyping Discrimination, New York Employment Attorney Blog, October 2, 2017

Understanding Recent Federal Actions on Gender Identity Discrimination in Employment, New York Employment Attorney Blog, August 22, 2017

U.S. Supreme Court Sends Gender Identity Discrimination Case Back to Appellate Court, New York Employment Attorney Blog, August 18, 2017

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