(Last Updated 7-08-16)
The Commission adopted its current Strategic Enforcement Plan (SEP) in December of 2012. The SEP includes "coverage of lesbian, gay, bisexual and transgender individuals under Title VII's sex discrimination provisions, as they may apply" as a top Commission enforcement priority.
Consistent with this priority, the Commission's General Counsel formed an LGBT working group that provides advice and input to the Agency's litigators on developing litigation-related vehicles. This work group also coordinates internal initiatives and policies, trains internal staff, and conducts outreach with external stakeholders.
In addition, Agency litigators have filed lawsuits and amicus curiae briefs in various courts addressing a multitude of LGBT discrimination-related issues. These include:
Broussard's complaint alleges that First Tower Loan's decided to terminate him because he is transgender and because of his inability to conform to First Tower Loan's stereotypical expectations of gender. He further alleges that defendant's requirements that he should agree to be treated as female, including dress and conduct, violates Title VII's prohibition on employment discrimination because of sex. Broussard first filed charges with the EEOC. The Commission investigated the discrimination charged and issued a notice of right to sue. In September 2015, the court granted the EEOC's motion to intervene. The Commission's lawsuit seeks injunctive relief to prohibit First Tower Loan from engaging in unlawful sex discrimination in the future, as well as lost wages, compensatory and punitive damage for Broussard.
On December 10, 2015, the court issued an order staying the EEOC's suit pending private arbitration between Broussard and the defendant. On January 7, 2016, the Commission filed a motion to reconsider that order staying the EEOC's claims. This motion is pending before the court.
The Appellate Court held that a plaintiff alleging same-sex harassment can show that the harassment occurred because of sex by showing that it was motivated by the harasser's subjective perception that the victim failed to conform to gender stereotypes. The Court agreed with the Commission that this rule follows from Price Waterhouse v. Hopkins, 490 U.S. 228 (1989), and Oncale v. Sundowner Offshore Services, Inc., 523 U.S. 75 (1998). The Court ruled that the focus is on the "harasser's subjective perception of the victim" and even an employer's "wrong or ill-informed assumptions about its employee may form the basis of a discrimination claim" since "[w]e do not require a plaintiff to prop up his employer's subjective discriminatory animus by proving that it was rooted in some objective truth." The Court then ruled that the Commission had offered sufficient evidence to sustain the jury's verdict that Wolfe harassed Woods because of sex (here, because Wolfe viewed Woods as "not manly enough"), and that Wolfe's harassment of Woods was sufficiently severe or pervasive to create a hostile environment. See 732 F.3d 444 (5th Cir. 2013) (en banc).
In an amicus curiae brief, the EEOC argued Price Waterhouse makes clear that transgender discrimination is cognizable as discrimination because of sex under Title VII. The Commission noted that numerous federal district courts have concluded that transgender discrimination is cognizable under Title VII. Additionally, the Commission argued that the defendant's reliance on the rationale in Sommers and Ulane is misplaced because the Supreme Court rejected the rationale in those cases. The Commission further argued that the Supreme Court in Oncale explicitly rejected the idea that Title VII only proscribes types of discrimination specifically contemplated by Congress. Furthermore, Congressional inaction does not exclude the plaintiff's claim under Title VII. Accordingly, the plain language of Title VII prohibits discrimination based on transgender status, and the court should hold that transgender discrimination is cognizable as sex discrimination under Title VII.
On September 15, 2015, the District Court denied H & H's motion for summary judgment. The court found that plaintiff pled facts sufficient to state a sufficient claim that H & H discriminated against her because of her sex in violation of Title VII. Notably, the court did not specifically address the Commission's argument. Instead, it based the analysis on gender non-conforming behavior, rather than status as a transgender individual. The court concluded that plaintiff provided ample evidence from which a reasonable juror could find that she was terminated because of her sex. The plaintiff carried her burden to show that H & H's proffered reason was pretext for sex discrimination.
In an amicus brief, the EEOC argued that the 5th Circuit should reverse the grant of summary judgment because the district court incorrectly interpreted the scope of Title VII's protections against discrimination "because of…sex." The Commission explained that a transgender plaintiff may state a claim for discrimination because of sex, if the defendant's action was motivated by the plaintiff's nonconformance with a sex stereotype or norm. The Commission further argued that a plaintiff asserting transgender discrimination need not provide specific evidence of gender stereotyping because "consideration of gender stereotypes will inherently be part of what drives discrimination against a transgendered individual." Additionally, the EEOC argued that the evidence presents a genuine dispute of fact, from which a reasonable jury could infer that defendant discriminated against the plaintiff because of his sex.
On August 26, 2015, the EEOC requested the circuit court to allow it to participate in oral arguments on behalf of the plaintiff. On September 17, 2015, the plaintiff withdrew his appeal.
In its proposed amicus brief, the EEOC argued that the district court should deny defendant's motion to dismiss and hold that discrimination against an individual because she is transgender violates Title VII. As it did in in its amicus brief in Lewis (above), the EEOC explained that courts recognize that Title VII's prohibition on sex discrimination encompasses discrimination based on the failure to conform to gender expectations. Thus, discrimination against a transgender individual for non-conformance with gender norms is sex discrimination. Further, the EEOC contended, specific evidence of gender stereotyping is not necessary because consideration of gender stereotypes is inherently part of what drives transgender discrimination. Additionally, the EEOC argued, the district court should hold that plaintiff's EEOC charge satisfied the administrative prerequisite to a suit alleging transgender discrimination, as the discrimination alleged in the charge is the same discrimination as that alleged in the complaint. Finally, the EEOC urged the district court to hold that plaintiff's act of filing a charge with the EEOC and opposing conduct that a reasonable person would believe is unlawful is protected activity for purposes of a retaliation claim. The EEOC explained that Title VII's "participation clause" protects an individual from retaliation for filing a charge, without limitation (e.g., a showing that plaintiff's charge was filed "in good faith"). Plaintiff's "opposition clause" claim also should proceed because she could have a good faith, reasonable belief that transgender-based discrimination violates Title VII.
On January 26, 2015, Saks withdrew its motion to dismiss plaintiff's claim. On March 4, 2015, the parties filed a stipulation agreeing to dismiss the action with prejudice.
In an amicus brief, the EEOC argued the district court should deny defendant's motion to dismiss and hold that failing to hire an individual because she is transgender violates Title VII. The EEOC explained that sexual orientation is a different concept altogether than transgender status or gender identity. The EEOC further explained that courts have recognized that Title VII's prohibition on sex discrimination encompasses discrimination based on the failure to conform to gender expectations. Thus, discrimination against a transgender individual for non-conformance with gender norms is sex discrimination. Further, the EEOC argued, specific evidence of gender stereotyping is not necessary because consideration of gender stereotypes is inherently part of what drives transgender discrimination.
On October 30, the district court granted the EEOC's motion for leave to file its amicus brief. The court noted that "[i]t is clear that this Court's ruling will implicate the interpretation and effective enforcement of Title VII, and therefore the EEOC has an interest in this matter. Further, as plaintiff is pro se, and the EEOC is the expert agency on the matter of Title VII, the EEOC's amicus brief will be of aid to the Court in its decisional process."
On January 15, 2015, the district court denied defendant's motion to dismiss (as well as plaintiff's motion for summary judgment). The court noted that "[n]owhere in her complaint does plaintiff allege discrimination on the basis of sexual orientation." Further, the court concluded, "neither the Supreme Court nor the Fourth Circuit's Title VII jurisprudence has addressed transgender status, which, as amicus EEOC points out, is different than sexual orientation." The Court declined to resolve whether "plaintiff's complaint fits within a gender-stereotyping framework" since "the issue was not raised in defendant's motion to dismiss . . . ." See Lewis v. High Point Regional Health System, 79 F. Supp. 3d 588 (E.D.N.C. Jan. 15, 2015).
In ruling on the summary judgment motion, the district court rejected defendant's exhaustion argument. Without mentioning EEOC's brief, the court noted that the "limitations period under Title VII may be equitably tolled if the EEOC misleads a complainant regarding the nature of his or her rights." In the court's view that is what happened here. The court stated that "Title VII prohibits employers from discriminating against employees for failing to act and appear according to expectations defined by gender." (citing Price Waterhouse v. Hopkins, 490 U.S. 228, 235 (1989); Glenn v. Brumby, 683 F.3d 1312, 1316 (11th Cir. 2011)). The court reasoned that because the "'very acts that define transgender people as transgender are those that contradict stereotypes of gender-appropriate appearance and behavior, . . . [d]iscrimination against a transgender individual because of the gender nonconformity is sex discrimination, whether it's described as being on the basis of sex or gender.'" (citing Brumby, 683 F.3d at 1317) (adding that the "majority of federal courts" agree). Accordingly, the court concluded, "the EEOC misled [p]laintiff when it told [her] that she could not bring a claim for gender discrimination under Title VII," and, so, limitations on the claim "is required to be equitably tolled." The court went on to grant defendant's motion, however, finding no issue of fact as to whether the proffered reason for her termination - sleeping on the job - was pretextual. See 2014 WL 4585452 (N.D. Ga. Sept. 12, 2014).
On January 14th, 2016, the Eleventh Circuit issued a decision affirming the district court's ruling in favor of summary judgment for defendant on the issue of pretext, but reversed on the issues of (1) defendant's discriminatory intent, and (2) whether or not gender bias was a motivating factor in the termination decision, finding that plaintiff did present triable issues of fact. See Chavez v. Credit Nation Auto Sales, LLC, 2016 WL 158820 (11th Cir. Jan. 14, 2016).
The 11th Circuit held that plaintiff did not create a jury issue as to pretext because (a) she admitted to sleeping in her car on the clock, and (b) the defendant had previously fired a different employee for this same conduct. However, as to the termination, the court ruled that plaintiff presented sufficient evidence to demonstrate that gender bias was a motivating factor, including the skeptical attitude of her supervisor regarding her transition, instructions about how she was to dress at work and to and from work, her employer's concern about her gender expression as being disruptive, a bypassed disciplinary process that was supposed to precede any termination action, etc. See Chavez, 2016 WL 158820 at *6-9. The court stated that this issue should have survived summary judgment because it is enough that the plaintiff shows that "discriminatory animus existed and was at least 'a motivating factor.'" See id. at *8.
The Commission filed a motion for leave to file this amicus brief in the district court, and attached a copy of the brief to this motion. Freedom opposed the EEOC's motion for leave to file. The district court entered an order denying Freedom's motion for summary judgment. Later, the district court entered a separate order denying the EEOC's motion for leave to file its amicus brief. However, the district court did not strike the EEOC's motion for leave to file (or the proposed amicus brief, which was attached to the EEOC's motion) from the public docket sheet for the case.
Plaintiff appealed the decision to the Second Circuit. The EEOC filed an amicus curie brief in support of Christiansen, arguing that sexual orientation discrimination is cognizable as sex discrimination under Title VII. The EEOC outlined three theories under which Christiansen's claim can proceed. First, Title VII's prohibition on discrimination based on sex stereotypes extends to discrimination based on sexual orientation. Second, Title VII's prohibition on discrimination based on interracial associations extends to discrimination based on same-sex associations. Third, Title VII's prohibition on sex discrimination extends to discrimination based on sexual orientation.
Additionally, the EEOC argued that the Second Circuit should reconsider Simonton for two reasons: the legal underpinnings for the decision have shifted, and the rule that Title VII does not prohibit discrimination based on sexual orientation is outdated.
In its amicus brief, the EEOC argued that Title VII's prohibition on sex discrimination encompasses a prohibition on discrimination because of sexual orientation. This is a question of first impression in the Eleventh Circuit. Consistent with Baldwin v. Foxx, EEOC Appeal No. 0120133080, 2015 WL 4397641 (EEOC July 15, 2015), the EEOC argued that sexual orientation discrimination is covered under Title VII because Title VII prohibits discrimination based on sex stereotypes, prohibits discrimination based on association, and prohibits employers from considering a plaintiff's sex.
The EEOC also argued that the district court erred in dismissing Evans's retaliation claim. First, the EEOC argued that in complaining about discrimination based on sexual orientation, Evans opposed conduct that was actually made unlawful by Title VII. Second, the EEOC argued that even if the Eleventh Circuit disagrees that sexual orientation discrimination is covered by Title VII, the statute shields not only employees who oppose acts that are illegal under the statute, but also employees who object in good faith to practices that they reasonably believe are illegal, even if they are not. Based on the Eleventh Circuit's precedent holding that Title VII prohibits discrimination against transgender individuals, coupled with the EEOC's well-publicized position that Title VII prohibits discrimination based on sexual orientation, Evans's belief that she was opposing unlawful conduct was objectively reasonable.
The EEOC further argued that discrimination based on sexual orientation also constitutes associational discrimination, because the individual is treated differently based on the sex of those with whom they associate. Race-based association discrimination has been prohibited under Title VII, and so it follows that this prohibition should apply to claims of sex-based association discrimination. Finally, the EEOC reiterated that the broad concept of sexual orientation cannot be understood without reference to an individual's sex; thus, any discrimination based on sexual orientation necessarily involves the impermissible consideration of an employee's sex.
In an amicus curiae brief supporting the petition, the Commission argued that part of the panel's ruling rests on the sweeping proposition that Title VII's prohibition on discrimination "because of sex" does not prohibit discrimination based on sexual orientation. Yet an increasing number of courts, as well as the EEOC (the primary Agency charged with enforcing the statute), have recognized that intentional discrimination based on an individual's sexual orientation can be proved to be grounded in sex-based norms, preferences, expectations, or stereotypes. For example, in Terveer v. Billington, 2014 WL 1280301 (D.D.C. Mar. 31, 2014), the U.S. District Court for the District of Columbia held that a plaintiff's allegation that discrimination occurred because of "plaintiff's status as a homosexual" - without more - plausibly suggested the discrimination was based on gender stereotypes, and thus stated a Title VII sex-discrimination claim. Accordingly, Title VII's anti-retaliation rule protects individuals who in good faith oppose sexual-orientation discrimination in the workplace. The EEOC argued that for these reasons, the panel should modify the categorical statements to the contrary in its opinion, overruling the Circuit's precedent if necessary.
On October 16, 2014, the panel denied the petition for rehearing. But in a significant step, the panel issued an amended opinion removing its original rulings regarding the scope of Title VII coverage. The opinion no longer repeats or relies upon statements from prior Seventh Circuit decisions that Title VII does not prohibit sexual-orientation discrimination or retaliation for related opposition conduct. The revised panel opinion affirms the district court's summary-judgment for Caterpillar on other grounds, on which the Commission took no position. See 767 F.3d 694 (7th Cir. 2014), 2014 WL 4418649 (7th Cir. Sept. 9, 2014, as Amended on Denial of Rehearing, Oct. 16, 2014).