Gender Identity Discrimination In Employment: Courts’ Interpretation of “Because of Sex” Is Evolving

Last fall, the Equal Employment Opportunity Commission (“EEOC”) made a groundbreaking decision to bring a claim of unlawful sex-based discrimination against an employer who terminated an employee solely on the basis of her status as a transgender individual.  While Title VII of the Civil Rights Act does not expressly enumerate gender identity as a protected class, the EEOC argued that gender identity discrimination is a form of unlawful sex stereotyping.

Aimee Stevens, a transgender woman, worked as a Funeral Director at R.G. & G.R. Funeral Homes, Inc., until she was allgedly fired because of her gender identity.  This week, the Eastern District of Michigan denied the former employer’s motion to dismiss Aimee’s lawsuit on the grounds that gender identity is not a protected class, marking one of the first times a federal court has permitted a transgender plaintiff to proceed with a claim of unlawful sex stereotyping.

What is sex stereotyping?

In 1989, the Supreme Court of the United States ruled that employees are protected from workplace discrimination for failing to conform to stereotypes of one’s sex.  Specifically, the Court found that an employer’s practice of rewarding assertiveness in male employees while punishing female employees for identical behavior violated Title VII.  Plainly, employees may not be fired or otherwise singled out for differential treatment simply because they do not meet societal expectations of masculinity and femininity.

Although not expressly codified, Title VII’s prohibition on discrimination “because of sex” includes protection from discrimination on the basis of sex stereotypes.  Recently, attorneys for transgender plaintiffs have interpreted this language as prohibitive of gender identity discrimination. 

An individual’s gender identity, a social construct, does not always mirror an individual’s biological sex.  An employer who targets employees for disparate treatment on the basis of gender identity is essentially demanding that employees conform to stereotypes of sex.  In Ms. Stevens’ case, the EEOC asserts that her employer unlawfully terminated her because her female gender identity does not conform to the stereotype that all biological males should exclusively identify as men.

Are transgender employees protected from workplace discrimination?

Not necessarily.  The Supreme Court has yet to speak on whether gender identity is protected as stereotype of sex, but this is not the first time Title VII protections have arisen through litigation before becoming expressly codified.  Sexual harassment was similarly determined to be unlawful discrimination “because of sex” several years before it was incorporated into Title VII amendments.    

In 1964, when Title VII was enacted, transgender individuals lacked social visibility, and the term “gender identity” was not yet widely cognizable as separate from one’s sex.  While the EEOC is permitted to proceed on Ms. Stevens’ behalf, her battle has only just begun.  The Supreme Court has rejected similar sex stereotyping arguments in the past, ruling that sexual orientation is not a stereotype of sex protected by Title VII.  The EEOC now faces the task of convincing courts that gender identity is a stereotype of sex, despite prior rulings denying similar application to sexual orientation.  Although Title VII has not yet been amended to include either sexual orientation or gender identity as enumerated protected classes, the EEOC’s willingness to advocate this issue is a sign of progress for transgender employees.