Under Executive Order (EO) 13672, which took effect in 2015, federal contractors and subcontractors are prohibited from discriminating against applicants and employees on the basis of sexual orientation or gender identity.
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In response to the 2015 changes, affected contractors and subcontractors took action to modify nondiscrimination policies, update EO clauses in affected contracts, undertake outreach and recruitment efforts, and add sexual orientation and gender identity provisions to job advertisement taglines.
Although there has been very little to indicate that the Office of Federal Contract Compliance Programs (OFCCP) is actively enforcing EO 13672, recent litigation activity from the Equal Employment Opportunity Commission (EEOC) shows that sexual orientation and gender identity discrimination lawsuits may be starting to take hold.
The EEOC recently filed several lawsuits alleging discrimination based on employees’ sexual orientation and gender identity. The cases, filed on behalf of workers in Maryland, Pennsylvania, Michigan, and Minnesota, are:
- EEOC v. Scott Medical Health Center, P.C., (W.D. Pa., No. 2:16-cv-00225-CB, filed March 1, 2016). Case brought by the EEOC against a provider of pain management and weight loss services, alleging sex discrimination in violation of Title VII of the Civil Rights Act of 1964 (Title VII) and harassment because the employee is gay and because the employee did not conform to the employer’s gender-based expectations, preferences, or stereotypes.
- EEOC v. Pallet Companies d/b/a IFCO Systems NA, Inc. (IFCO) (D. Md., No. 1:16-cv-00595-RDB, filed March 1, 2016). The EEOC sued IFCO, a provider of reusable plastic containers, alleging discrimination against a gay female employee based on her sex by terminating her for complaining about harassment. The EEOC also alleges harassment based on the employee’s sexual orientation in violation of Title VII.
- EEOC v. R.G. & G.R. Harris Funeral Homes, Inc. (E.D. Mich. Civ. No. 2:14-cv-13710-SFC-DRG, filed September 25, 2014). The EEOC alleges that the employer engaged in sex-based discrimination against a transgender funeral director/embalmer because she was transitioning from male to female and because she did not conform to the employer’s gender-based expectations, preferences, or stereotypes in violation of Title VII.
- EEOC and Austin v. Deluxe Financial Services, Inc. (Dist. Minn. Case No. 0:15-cv-2646, consent decree signed 1/20/2016). This case is discussed in more detail below.
Lessons Learned (So Far)
EEOC taking charge. First, the EEOC is demonstrating an increased willingness to enforce cases of sexual orientation and gender identity discrimination under the umbrella of Title VII. According to EEOC’s Acting District Director Elizabeth Cadle, “EEOC considers protecting transgender, lesbian, gay, and bisexual employees to be a strategic enforcement priority [and] will continue to assure that transgender employees receive the full benefit of federal antidiscrimination laws in all industries.”
Are federal contractors next? These cases not only set a precedent for EEOC enforcement but they also establish a body of case law under which related sexual orientation and gender identity discrimination complaints may be brought under EO 13672 by employees of federal contractors.
What EEOC wants. Perhaps the most helpful information thus far is contained in the consent decree signed by the parties in EEOC and Austin v. Deluxe Financial Services. According to EEOC’s complaint, Britney Austin, the employee, was assigned the male sex at birth and presented as male when hired by the company.
After she informed her supervisor that she was transgender and began to present as a woman at work, the employer refused to let her use the women’s restroom. According to the suit, supervisors and coworkers subjected Austin to a hostile work environment, including epithets and intentionally using the wrong gender pronouns to refer to her.
In addition to paying $115,000 to the employee in back pay, damages, and attorneys’ fees, the employer agreed to the following terms as part of its consent decree with the EEOC:
- The company must review its existing equal employment opportunity (EEO) policies and practices and must ensure that its written EEO policies include (at a minimum) a “strong and clear commitment” to:
- Prevent unlawful sex discrimination and prohibit discrimination based on disability (including gender dysphoria), sex-stereotyping, gender identity, and transgender status;
- Prevent unlawful harassment, including harassment based on sex, sex-stereotyping, gender identity, and transgender status (including the intentional misgendering of transgender employees); and
- Prevent retaliation.
- The company must include statements in its EEO policy that:
- Discrimination based on sex, disability, and retaliation is prohibited and will not be tolerated;
- An explanation that prohibited behavior will not be tolerated from its employees, customers, agents, contractors, subcontractors, clients, and any other persons present at the employer’s facilities and locations; and
- A clear and strong encouragement of persons who believe they have been discriminated or retaliated against to report such concerns.
With regard to its other practices and policies, the employer agreed to modify supervisors’ guidelines to prohibit inquiries into medical records, surgeries, or other treatments before an employee may use a restroom commensurate with his or her gender identity.
The employer also agreed to conduct EEO training for all employees on an annual basis with additional EEO training for supervisors. Finally, the employer agreed to ensure that its health benefits plan would not “include partial or categorical exclusions for otherwise medically necessary care solely on the basis of sex (including transgender status) and gender dysphoria.”
Bathrooms and Changing Facilities
The Occupational Safety and Health Administration’s (OSHA) recent “Guide to Restroom Access for Transgender Workers” provides useful guidance in how employers can deal with some of the more practical challenges and questions of how to best address the needs of transgender employees.
OSHA’s guidance makes it clear that transgender employees should have access to bathrooms that match the gender with which they identify. OSHA also requires that all employees be able to work in a way that’s consistent with how they live their everyday lives based on their gender identity, regardless of whether the employee has actually transformed his or her sex.
According to the OSHA guidance, restricting employees to using only restrooms that are not consistent with their gender identity or segregating them from other workers by requiring them to use gender-neutral or other specific restrooms singles out those employees and may make them fear for their physical safety.
As a result, employers may consider providing single-stall or single-occupant unisex restrooms that could be used by both transgender employees and their coworkers. However, employers should not require that transgender employees exclusively use these restrooms. Other resources available include the following.
The U.S. Department of Labor (DOL) has created a directory of organizations and other entities that offer resources and guidance to employers around issues related to creating an inclusive workplace for lesbian, gay, bisexual, and transgender (LGBT) employees. The resource center can be found on DOL’s website, here.
The California Department of Fair Employment and Housing (DFEH) recently issued frequently asked questions (FAQs) on transgender employee rights. These FAQs contain information on dress codes, bathrooms, questions about gender status, and the types of gender transition. The FAQs can be found on the DFEH website, here.