The Equal Employment Opportunity Commission (“EEOC”) has continued its push for increased focus on LGBT discrimination issues, with two cases in federal courts in Florida and Michigan pushing its position that gender stereotypes violate civil rights afforded under Title VII. One case, EEOC v. Lakeland Eye Clinic, in which the EEOC alleged the Clinic fired an employee after she informed them that she was transgender and intended to start presenting as a woman, settled last month for $150,000. Meanwhile, the remaining case, EEOC v. R.G. & G.R. Harris Funeral Homes, Inc. continues to move forward.

In its complaint, the EEOC accuses Detroit-based R.G. & G.R Harris Funeral Homes, Inc., of having discriminated against a transgender funeral director and embalmer because she is transgender, was transitioning from male to female, and/or because she did not conform to the employer’s gender-based expectations, preferences, or stereotypes.

The name plaintiff in the suit, Stephens, had been employed by Harris since October 2007 and had adequately performed the duties of her position during her employment. In 2013, Stephens gave Harris a letter explaining that she was undergoing a gender transition from male to female and would soon begin presenting to work in proper business attire consistent with her gender identity as a woman. She was fired two weeks later, her employer telling her that what she was “proposing to do” was unacceptable. In its complaint, the EEOC also takes issue with Harris’ provision of a clothing allowance for male employees but not female employees.

The funeral home moved to dismiss the complaint, arguing, among other things, (1) that “gender identity disorder” is not protected by Title VII, (2) the unsuccessful legislative efforts of the Employment Non-Discrimination Act (“EDNA”), infra, necessarily acknowledges these characteristics are not protected by Title VII, and (3) the EEOC’s contention that a transgender claimant is being punished for not conforming to his sex defeats its own premise, as presumably the transgender individual is being punished “precisely because he is conforming to his true sex.”

On April 21, 2015, U.S. District Court Judge Sean F. Cox denied Harris’ motion to dismiss for failure to state a claim, thereby allowing the case to proceed to discovery. The Court noted that “had the EEOC alleged that the Funeral Home fired Stephens based solely on Stephens’ status as a transgendered person” it would have been inclined to grant the motion to dismiss the complaint. The EEOC, however, also asserted that the Harris fired Stephens because she did not conform to the funeral home’s sex or gender-based preferences, expectation, or stereotypes. The Court, therefore, found that the EEOC had sufficiently pled a sex-stereotyping gender-discrimination claim under Title VII. Indeed, the Court also acknowledged that “even though transgendered/transsexual status is currently not a protected class under Title VII, Title VII nevertheless ‘protects transsexuals from discrimination for failing to act in accordance and/or identify with their perceived sex or gender.’”

While the Court did note that “there is no Sixth Circuit or Supreme Court authority to support the EEOC’s position that transgendered status is a protected class under Title VII,” Judge Cox’s decision certainly strengthens the EEOC’s position that Title VII might nevertheless protect the rights of transgendered workers discriminated against on the basis of their sex and or gender.

The EEOC has also filed an amici brief in a number of transgender discrimination cases across the country. Kelley Drye will continue to follow this case and update you on any developments in the ever changing landscape of LGBT discrimination.

Update on EEOC Transgender Litigation