Title VII of the Civil Rights Act of 1964 ("Title VII") is a federal law that prohibits employers from discriminating against employees on the basis of sex, race, color, national origin, and religion. We refer to these characteristics as "protected classes." Title VII applies to employers with 15 or more employees, including federal, state, and local governments. Title VII does not reference sexual harassment as a form of discrimination but in 1986, the U.S. Supreme Court ruled that sexual harassment was another form of discrimination because of "sex" and thus prohibited under Title VII. Since then, employees have brought a range of cases alleging more theories of discrimination because of sex. One theory of Title VII sex discrimination that has been gaining some momentum in recent years is gender identity/sexual orientation discrimination. Although not referenced in Title VII explicitly as a "protected class", the federal Equal Employment Opportunity Commission ("EEOC") states on its website that the "EEOC interprets and enforces Title VII’s prohibition of sex discrimination as forbidding any employment discrimination based on gender identity or sexual orientation. These protections apply regardless of any contrary state or local laws." The EEOC lists 21 court decisions described as "supporting coverage for transgender individuals as sex discrimination." https://www.eeoc.gov/eeoc/newsroom/wysk/lgbt_examples_decisions.cfm

For example, in one of the cases cited from the 11th Circuit, Chavez v. Credit Nation Auto Sales, L.L.C., Jennifer Chavez, who had gone from male to female gender transition, claimed that she was terminated from her job as an auto mechanic because of her gender nonconformity. The employer denied this and indicated that the employee was fired for sleeping on the job. The employer also showed that other employees had been fired in the past for the same reason. However, the transgender employee was able to show that her supervisor was "not without reservations" regarding her status. For example, approximately two months before her termination, she was told that her transgender status made her supervisor "nervous" and that it would negatively impact the business and coworkers. The transgender employee also claimed that she had received an excellent performance appraisal prior to disclosing her gender transition, and that the employer deviated from its progressive disciplinary policy by bypassing the policy and immediately terminating her for sleeping on the clock. Based on all of these facts, the 11th Circuit Court of Appeals reversed the trial court decision in January 2016 in favor of the employer and indicated that "triable issues of fact exist as to (1) her employer’s discriminatory intent and (2) whether gender bias was "a motivating factor" in Credit Nation’s terminating her."

Just a short time later in March 2017, the 11th Circuit dismissed the case of Evans v. Georgia Regional Hospital on the basis that while gender nonconformity is protected under Title VII, sexual orientation is not protected until Title VII.

Although the EEOC has maintained its position on this issue since the Trump administration has taken office, last week on October 4, 2017, Attorney General Jeff Sessions issued a memo entitled "Revised Treatment of Transgender Employment Discrimination Claims Under Title VII of the Civil Rights Act of 1964" and declared that "Title VII’s prohibition on sexual discrimination encompasses discrimination between men and women but does not encompass discrimination based on gender identity per se, including transgender status." Sessions indicated that the Department of Justice ("DOJ") would take that position in all pending and future matters. Sessions then withdrew a 2014 memo issued by then DOJ Attorney General, Eric Holden, in which Mr. Holden stated Title VII does encompass transgender discrimination based on his view that Title VII prohibits employers from taking into account "sex-based considerations."

According to the DOJ’s website, "the Employment Litigation Section enforces Title VII of the Civil Rights Act of 1964, as amended ("Title VII"), against state and local government employers. Title VII prohibits employment practices that discriminate because of race, color, national origin, sex (including pregnancy and gender identity) and religion." On September 7, 2017, the DOJ filed a brief in a private case, Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission, involving a cakeshop owner who refused to bake a wedding cake for a gay couple. The couple filed a charge of discrimination against the cakeshop owner under the Colorado Civil Rights Commission which ruled in the couple’s favor as did the state supreme court. The owner appealed to the U.S. Supreme Court claiming his First Amendment rights were being violated and the Supreme Court will hear the case this term. The DOJ argues that forcing [the cakeshop owner] "to create expression for and participate in a ceremony that violates his sincerely held religious beliefs invades his First Amendment rights." At the state level, more than 20 states prohibit discrimination on the basis of sexual orientation, and the majority of these states also include gender identity and expression in their list of protected classes.

Employers subject to these state laws are expected to comply with them. At the federal level, there is certainly more to come on this topic but, in the meantime, the EEOC’s position remains the same despite the DOJ’s position.

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