Tuesday, January 26, 2016

New Victories for Transgender Employees

The Equal Employment Opportunity Commission (EEOC) reached a settlement with Deluxe Financial Services, a payment processing company, in a workplace harassment complaint filed by Britney Austin. Ms. Austin was assigned as “male” at birth and presented as male when Deluxe Financial hired her. For many years, she worked for Deluxe Financial without incident and consistently maintained a satisfactory performance level. Eventually, Ms. Austin notified her supervisors that she was transgender, and that she would be transitioning from male to female. Shortly thereafter, Ms. Austin was confronted with hurtful slurs and insults, the intentional misuse of gender pronouns, and was forbidden from using the women’s bathroom.

In other words, Deluxe Financial subjected Ms. Austin to a hostile work environment and disparate treatment in violation of Title VII of the Civil Rights Act of 1964. The EEOC filed suit in the U.S. District Court for the District of Minnesota. After lengthy settlement negotiations, the parties agreed to enter into a three-year consent decree. The consent decree requires that Deluxe Financial issue Ms. Austin a letter of apology, provide a neutral employment reference, pay $115,000 in attorneys’ fees and damages, and make changes to its health benefits plan and employment policies to ensure fair treatment of its transgender employees. 

This case is another step in EEOC’s efforts to ramp up its enforcement of legal protections for transgender employees. In December 2012, the EEOC released its Strategic Enforcement Plan for fiscal years 2013-16, which identified workplace discrimination and harassment of transgender individuals as an emerging national issue and as a high priority for targeted enforcement. This inclusion of transgender protection came on the heels of Mia Macy v. Dep’t of Justice, the first case in which the EEOC recognized gender identity discrimination. Mia Macy was a transgender police detective who had accepted an offer of employment from the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF). While the background check was being conducted, she advised the Agency that she would be transitioning from male to female. Five days later, ATF revoked its offer, claiming budget restraints. Concerned, Ms. Macy contacted the Agency’s EEO counselor, who informed her that the position had not been eliminated as she had been told, but had been filled by someone who was allegedly further along in the background check than her. The two explanations, both completely contradictory and conveniently timed, provided strong pretextual evidence that the Agency’s real reason for revoking its offer was her transgender status.
 
At that time, pursuing justice for Ms. Macy was complicated. When she filed her EEO complaint with the Agency, alleging discrimination because of her “gender identity” and “sex stereotyping,” the Agency responded, “since claims of discrimination on the basis of gender identity stereotyping cannot be adjudicated before the EEOC, your claims will be processed according to Department of Justice policy.” The Department of Justice used a different internal system for adjudicating claims of sexual orientation and gender identity discrimination; unsurprisingly, this process did not offer Ms. Macy the same rights and legal protections that are available under Title VII.

The Agency’s interpretation of Ms. Macy’s claim was roundly rejected by the EEOC. The Commission found that Title VII’s “protections sweep far broader than” the Agency’s narrow definition of “sex,” “in part because the term ‘gender’ encompasses not only a person's biological sex but also the cultural and social aspects associated with masculinity and femininity.” To otherwise restrict the meaning of “sex” would ignore critical social complexity and exclude an entire class of individuals.

The EEOC continues to refine protections for transgender employees. In Lusardi v. Dep’t of the Army, the Commission ruled that the intentional use of incorrect gender pronouns and denial of proper restroom access qualified as creating a hostile work environment. However, although progress is being made, there is still a long road ahead. Gender identity discrimination remains a serious economic and social justice issue. Everyone, regardless of gender identity or expression, deserves a workplace free from harassment, hostility, and discrimination. If you have experienced harassment at work on the basis of your transgender status, please do not hesitate to contact the attorneys at Kalijarvi, Chuzi, Newman & Fitch, P.C. for help.


Written by Nina Ren


We have blogged about transgender rights before:

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