Another Great Unknown: the Future of LGBT Protections Under President Trump

During the first few weeks (or even months) in office, President Trump will have a lot of key issues (e.g., healthcare and immigration) on his agenda.  What we do not know is whether President Trump and his administration will focus on transgender or sexual orientation rights.  In fact, we have no clear indication on what President Trump’s position is on transgender rights (though he went on record during a town-hall-style campaign event to state that transgender people should be allowed to use the bathroom they feel is appropriate).  What we do know is that President Trump will have the opportunity to appoint the new chair at the Equal Employment Opportunity Commission in July 2017 when the term of its current chair, Jenny Chang, expires, if not sooner.   The new chair, with likely budget cuts from Congress, could lead the EEOC to an about-face from the current EEOC direction of applying Title VII to workplace discrimination claims based on gender identity and sexual orientation.

In the last several years, following the momentum built by federal courts upholding transgender rights under Title VII (e,g., Smith v. City of Salem (6th Cir. 2004), Schroer v. Billington (D.C. Cir. 2008), and Glenn v. Brumby (11th Cir. 2011)), the EEOC has interpreted the prohibition against sex discrimination under Title VII of the Civil Rights Act of 1964 as providing protection to lesbian, gay, bisexual, and transgender people, even though there is no explicit language extending the protections to gay and transgender rights.  (See Macy v. Dept. of Justice (EEOC 2012), Lusardi v. Dep’t of Army (EEOC 2015)).  Applying that interpretation, the EEOC has filed lawsuits against a number of employers for sexual orientation or gender identity discrimination.  In October 2016, the EEOC published its Strategic Enforcement Plan (SEP) for Fiscal Years 2017-2021. (https://www.eeoc.gov/eeoc/plan/sep-2017.cfm). In the SEP, the EEOC outlined its enforcement and guidance strategies for various employment issues and outlined that it continues to prioritize, among other issues, “protecting lesbians, gay men, bisexuals and transgender (LGBT).”  The EEOC under the Trump Administration is likely to alter its course in vigorously enforcing such issues, choosing instead a narrower view of “sex” discrimination under Title VII since the United States Supreme Court has yet to weigh in on whether such individuals are protected under Title VII.

Interestingly, however, any changes that may be made in the direction of the EEOC may not slow the push to interpret “sex” discrimination to include sexual orientation and gender identity. If the Seventh Circuit in Hively v. Ivy Tech Community College and Second Circuit in Christiansen v. DDB Worldwide join the Sixth, District of Columbia and Eleventh Circuits in determining that Title VII protects employees from discrimination based on sexual orientation, this would signal that the U.S. Circuit Courts are the new vanguard of an expansive interpretation of Title VII’s protections, potentially supplanting the active role that the EEOC has played throughout the Obama Administration. Of course, the issue of the scope of Title VII may thereafter wind its way to the U.S. Supreme Court, and how the high court would rule, particularly when the current judicial vacancy is filled, is very much an open question.

The Trump Administration’s strategies and appointments will undoubtedly impact transgender and sexual orientation discrimination protections under Title VII, but the administration’s ultimate strategic direction as to Title VII, as well as a broad range of policy positions, is largely unknown at present. For now, we watch and wait.

-Sayaka Karitani

50 For 50: Five Decades Of The Most Important Employment Discrimination Decisions

Number 48:  Transgender Rights Under Title VII 

As Pride festivities celebrating the lesbian, gay, bisexual, and transgender (LGBT) culture occur this month in Los Angeles, San Francisco, San Diego and Sacramento, we take a look at the development of transgender discrimination law under Title VII of the Civil Rights Act.  Unlike the California Fair Employment & Housing Act which expressly prohibits employment discrimination on the basis of sexual orientation, gender identity and gender expression, Title VII does not specifically identify these categories as protected from discrimination.  However, the courts and the Equal Employment Opportunity Commission (EEOC) have interpreted Title VII’s prohibition of discrimination “because of sex” to encompass sexual orientation, gender identity and transgender status.

One seminal decision came just over two years ago from the EEOC.  In Macy v. Bureau of Alcohol, Tobacco Firearms and Explosives, the EEOC allowed Complainant Mia Macy to pursue a complaint against the Bureau when she was passed over for a transfer to a different office.

Macy, a police detective and ballistics technician, was a transgender woman.  At the time that Macy sought a transfer from her position at the Bureau’s Phoenix office to a Bay Area office, she was known as a male and had not yet made the transition to present as a female.   In speaking with the Phoenix director, Macy learned that she could assume she had the Bay Area position provided no problems arose during the background check procedures.  During the process, Macy informed her supervisor that she was in the process of transitioning from male to female, and requested that her supervisor inform the Director of the San Francisco Bureau of this change.

Just days later, Macy was told that the Bay Area position was no longer available due to budget reductions.  She subsequently received contradictory information that the position had not been eliminated, but a different candidate who had been further along in the background investigation was instead selected.  Macy believed that this was a false statement because her own background investigation had been proceeding.  She filed an internal complaint with the Bureau consistent with the federal agency’s requirements.  In her complaint, Macy described her claim of sex discrimination as “change in gender (from male to female)” and based on “my sex, gender identity (transgender woman) and on the basis of sex stereotyping.”  The Bureau’s response was that Title VII did not apply to transgender individuals.  Macy appealed the Bureau’s decision to the EEOC.

The EEOC Commissioners unanimously declared that Title VII’s prohibition on sex discrimination is far broader than merely barring discrimination on the basis of biological sex.  It clarified “that claims of discrimination based on transgender status, also referred to as claims of discrimination based on gender identity, are cognizable under Title VII’s sex discrimination prohibition.”  Transgender discrimination is “related to the sex of the victim” and a type of discrimination prohibited by Title VII.   The discrimination can take many different forms, the EEOC explained, including whether an employer discriminates against an employee because the individual has expressed his or her gender in a fashion contrary to male-female stereotypes, because the employer is uncomfortable with the fact that the person has transitioned or is in the process of transitioning from one gender to another, or because the employer simply does not like that the person is identifying as a transgender person.  “Gender” not only encompasses a person’s biological sex, but also the cultural and social aspects associated with masculinity and femininity.

The EEOC’s Macy decision was only binding on federal agencies, but courts have also determined that Title VII protects gender stereotyping and transgender employees in the private sector.  In Price Waterhouse v. Hopkins (1989) 490 U.S. 228, Hopkins sued her employer for sex discrimination on the grounds that her employer failed to promote her because she did not exhibit feminine mannerisms.  Hopkins’ coworkers did not want to work with her, believing that she did not act in a manner that they believed a woman should.  She was aggressive, foul-mouthed, demanding, and impatient.  Her supervisors told Hopkins to walk and dress more femininely.  The U.S. Supreme Court found that if an employer relies upon sexual stereotypes, including a belief that a woman cannot be aggressive, or that she must not be, the employer has acted on the basis of gender in violation of Title VII.  In 2004, the Sixth Circuit held that transgender individuals have viable Title VII claims, while the Eleventh Circuit declared in 2011 that the type of Price Waterhouse gender stereotyping that forms a Title VII claim extends to transgender employees.

Is Title VII a statute of expanding jurisdiction for the EEOC?  After Macy, it is clear that the EEOC thinks so.  The EEOC maintains that a transgender person may establish a prima facie case of sex discrimination in a variety of ways, such as an employer’s belief that biological men should consistently present as men and exhibit only typical male characteristics, or a failure to hire because an applicant is transitioning to the opposite gender.  As a result of the Macy decision, the EEOC’s 53 field offices will accept claims for investigation in which an applicant or employee alleges that he or she was discriminated against based on transgender status.  Based on these federal courts’ and the EEOC’s broad reading of “sex discrimination,” employers who discriminate against transgender individuals or based upon preconceived notions how males and females must present will find themselves in violation of Title VII.

- Kristin Oliveira

50 For 50: Five Decades Of The Most Important Employment Discrimination Decisions

Number 47: Same Sex Harassment Is Illegal

It seemed like a simple enough issue.  In 1984, the Supreme Court found that sexual harassment — when it is severe or pervasive — can alter an employee’s ability to work and thus can impact the victim’s “terms, conditions, or privileges of employment.”  Title VII doesn’t actually use the words “sexual harassment” and therefore there are no requirements in the law about the gender of the harasser and the victim.  Indeed, once Demi Moore sexually harassed Michael Douglas in the movie Disclosure, it was assumed that either a male or female could be harassed. Continue reading

U.S. House Will Not Pass Bill Prohibiting Discrimination Against Gay Workers

Today, the U.S. Senate is expected to pass the Employment Non-Discrimination Act (ENDA), a bill which prohibits discrimination on the basis of sexual orientation, but the bill is not expected to make its way to the President’s desk.  Speaker John Boehner announced today that he opposed ENDA, leaving the impression that the bill is dead on arrival in the House of Representatives.

In California and 28 other states which already prohibit discrimination against gay workers, ENDA would have little effect.  But in the remaining 21 states, it remains legal to discriminate against employees or applicants because of their sexual orientation.

Strangely, the Speaker’s office issued a press release stating that he “believed this is covered by existing law.”  But, of course, Title VII does not prohibit discrimination because of sexual orientation.  And, in the past, Boehner stated that he was opposed to the bill because he felt it would “lead to endless, excessive litigation” and “drastically weaken religious freedom in the workplace.”

- Dan Handman