EEOC Runs Ahead of the Courts on Questions of Gender Identity Discrimination

By Susan Jones | May 11, 2016 | 10:43am EDT
People protest outside the North Carolina Executive Mansion in Raleigh, N.C., following passage of a law requiring people to use the restrooms that correspond with their gender at birth. (AP File Photo)

( - A number of federal statutes, including Title VII of the Civil Rights Act of 1964, bar discrimination on the basis of "sex."

And now, with transgender issues making daily headlines, a number of federal courts are being asked to decide if "sex" goes beyond simple anatomy and must also include "gender identity."

There's absolutely no doubt about it at the U.S. Equal Employment Opportunity Commission, which flat-out states on its website that it is illegal to discriminate against a job applicant or an employee "because of the person's race, color, religion, sex (including pregnancy, gender identity, and sexual orientation)..."

In fact, the EEOC is busy establishing case law on the subject.

Just six days ago, the EEOC told a Minnesota company to pay $140,000 to a man who was asked to leave his job after he told co-workers he planned to "transition" from male to female.

Here are the facts of the case, as stated by the EEOC:

Ellucian, a higher education technology services company, barred the transgender employee from his assigned contract job on a college campus, the day after the employee told co-workers he "planned to transition from male to female."

The college where the employee was working asked Ellucian to remove the employee from their campus, and Ellucian complied with the college's request.

According to the EEOC, "Such alleged conduct violates Title VII of the Civil Rights Act of 1964, which prohibits sex discrimination, including bias based on transgender status, gender stereotyping and subjecting an employee to different terms and conditions and/or a hostile work environment because of sex."

Despite the EEOC's affirmative opinion that the federal ban on "sex" discrimination includes gender-identity discrimination, the question has not been resolved conclusively by the courts.

In an opinion released on Tuesday, Attorney General Mark Herring of Virginia, a Democrat, noted that numerous federal statutes and regulations prohibit sex-based discrimination, but those statues do not define the term "sex."

The Virginia attorney general stated, "it would be premature at this time to offer a definitive opinion on the question of whether sex discrimination categorically includes...gender identity discrimination," but he also noted that "the unmistakeable trend in federal courts is towards construing anti-sex-discrimination statutes to prohibit discrimination against LGBT individuals in many circumstances."

In his opinion, Attorney General Mark Herring stated that the EEOC's "reasonable interpretation of Title VII is entitled to deference," and Herring quoted at length from EEOC's 2012 decision in Macy v. Holder, which found that "evidence of gender stereotyping is simply one means of proving sex discrimination" toward transgenders.

EEOC, in announcing its findings in the Ellucian case, also referred to the April 2012 Macy case, noting that it "ruled that employment discrimination against employees because they are transgender is sex discrimination which violates Title VII."

"Since that time, EEOC has focused on protecting transgender individuals as a strategic enforcement priority and has resolved several potential charges and lawsuits," the news release said.

Under the terms of the agreement with Ellucian, the company must not only pay the transgender person $140,000; it also must modify its code of conduct to include gender identity as a protected basis in its anti-discrimination provisions, and it must distribute the new code of conduct to all employees.

Ellucian must also provide training for all of its employees in the U.S. on gender identity discrimination, with additional training and coaching for all personnel who may receive removal requests from clients. And finally, Ellucian must report all removal requests made by clients to EEOC for the next three years.

"We appreciate that Ellucian worked cooperatively with EEOC to resolve this charge without having to go through protracted litigation," said Julianne Bowman, district director of the EEOC's Chicago District. "As a result of this agreement, Ellucian is helping to lead the way for transgender employees to enjoy equal rights in the workplace in Minnesota."

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