Sexual orientation and gender identity are not expressly addressed in Title VII. Nevertheless, the EEOC has increasingly pushed to expand the definition of “sex discrimination” under Title VII to include these classes.

Title VII’s Prohibitions in Gender Stereotyping

Title VII contains no express protections for LGBT workers. However, the statute’s prohibition on sex discrimination has been interpreted by the U.S. Supreme Court to include treating employees differently for failing to conform to traditional gender stereotypes. Price Waterhouse v. Hopkins, 490 U.S. 228 (1989). In Price Waterhouse, a female senior manager was denied partnership because she was perceived as too “macho” and “aggressive” for a woman. She was told she could improve her chances at partnership if she were to take “a course at charm school, walk more femininely, talk more femininely, dress more femininely, wear makeup, have her hair styled and wear jewelry.” The Court reasoned that the plaintiff’s male colleagues had discriminated against her on the basis of her gender by denying her partnership based on her failure to conform to traditional notions of female conduct. Nine years later, a unanimous Supreme Court held that “nothing in Title VII necessarily bars a claim of discrimination ‘because of . . . sex’ merely because the plaintiff and the defendant (or the person charged with acting on behalf of the defendant) are of the same sex.” Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 79 (1998). These two decisions are often cited in the context of Title VII claims brought by LGBT workers.

Recently, the U.S. Court of Appeals for the Fifth Circuit held that a male manager had discriminated against a male employee on the basis of sex after learning that the employee used moist towelettes instead of ordinary dry toilet paper, which the manager thought was “kind of gay” and “feminine.” EEOC v. Boh Bros. Constr. Co., 731 F.3d 444 (5th Cir. 2013) (en banc). The manager allegedly subjected the employee homophobic slurs, simulated anal intercourse with the employee numerous times, and showed his penis to the employee on multiple occasions.

In pursuing a Title VII claim on behalf of the employee, the EEOC relied on evidence that the manager viewed him as “insufficiently masculine.” Finding that the manager’s harassment was motivated by a perception that the employee did not conform to the manager’s “manly-man stereotype,” the Fifth Circuit held that the EEOC had established a sexual harassment claim based on sex stereotyping.

Gender Stereotyping and Transgender Employees

Individual plaintiffs also have been successful in expanding the scope of Title VII to afford protections to transgender employees, specifically. See, e.g., Schwenk v. Hartford, 204 F.3d 1187 (9th Cir. 2000); Smith v. City of Salem, 378 F.3d 566 (6th Cir. 2004) (transgender firefighter); Barnes v. City of Cincinnati, 401 F.3d 729 (6th Cir. 2005) (transgender police officer); Schroer v. Billington, 577 F. Supp. 2d 293 (D.D.C. 2008) (transgender applicant for Library of Congress). In Schroer, the District of Columbia went beyond gender stereotyping and also held that discrimination based on gender transition, such as the plaintiff’s transition from male to female, constitutes sex discrimination.

In its adjudicatory capacity in federal sector employment disputes, the EEOC has clearly articulated that LGBT workers, and transgender workers specifically, are protected from sex discrimination under Title VII. In 2012, the EEOC held that discrimination against an employee because that person is transgender constitutes discrimination based on sex or sex stereotyping. Macy v. Dep’t of Justice, EEOC Appeal No. 0120120821 (April 20, 2012). In April 2015, the EEOC concluded that denying employees the use of a restroom consistent with their gender identity and subjecting them to the intentional use of the wrong gender pronouns constitutes sex discrimination under Title VII. Lusardi v. McHugh, EEOC Appeal No. 0120133395 (April 1, 2015).

In recent months, the EEOC has pressed this theory in the private sector by filing three lawsuits over alleged sex discrimination against transgender individuals. On September 25, 2014, the EEOC filed two lawsuits—in Florida and Michigan, respectively—alleging discrimination based on transgender status. In its Florida lawsuit against Lakeland Eye Clinic, the agency claimed that the plaintiff was fired after she began wearing feminine clothing to work and informed the clinic she was transitioning from male to female. The parties settled that lawsuit, with the clinic agreeing to pay $150,000.

Also on September 25, 2014, in the Eastern District of Michigan, the EEOC sued R.G. & G.R. Harris Funeral Homes, Inc., alleging that the funeral home discharged its funeral director and embalmer two weeks after she gave notice that she was transitioning from male to female. On April 21, 2015, the district court denied the funeral home’s motion to dismiss. EEOC v. R.G. & G.R. Harris Funeral Homes, Inc., No. 14-13710 (E.D. Mich. Apr. 21, 2015). The court rejected the EEOC’s position that transgender status is a protected class. However, the court held that a transgender person can bring a sex-stereotyping discrimination claim under Title VII, and permitted the case to proceed on that basis.

Most recently, on June 4, 2015, the EEOC filed suit against Deluxe Financial Services Corp. in the District of Minnesota alleging that the company subjected a transgender employee to sex discrimination. According to the complaint, the employee was discriminated against and subjected to a hostile work environment when the company refused to let her use the women’s restroom, made hurtful epithets, and intentionally used the wrong gender pronouns to refer to her.

Responding to Transgender Employees in the Workplace

Going forward, employers should expect the EEOC to continue its efforts to remedy discrimination against LGBT workers through Title VII claims. The EEOC may engage in joint investigations with the Department of Justice regarding sexual orientation and/or gender identity discriminations, with complaints against non-federal contractors referred to the EEOC. Additionally, employers should be aware that 16 states and the District of Columbia now prohibit discrimination on gender identity, gender expression, or transgender status. Thus, even if federal law does not provide express protections for LGBT workers, state law might offer such protection.

Given the EEOC’s recent efforts to address discrimination against transgender individuals, even those employers that do not operate in a jurisdiction that has enacted a law expressly prohibiting such discrimination should be conscious of these issues and take steps to prevent sex stereotyping in the workplace. Employers should consider amending their non-discrimination and non-harassment policies to include, at a minimum, prohibitions against setting gender-based expectations or using sex stereotypes.

Employers also should consider creating protocols for working with transgender employees that establish procedures for assisting transitioning employees, require the use of proper gender pronouns, and provide appropriate access to restrooms and locker rooms. In fact, on June 1, 2015, the Department of Labor’s Occupational Safety and Health Administration issued guidance on the best practices for providing restroom access to transgender workers (see here), the core principle of which is that all employees, including transgender employees, should have access to restrooms that correspond to their gender identity. Once these protocols have been established, the remainder of the workforce should be trained in complying with company policies and educated about potential transgender issues.