Sex Discrimination of All Types Will Be Enforced

May 5, 2015

The Equal Opportunity Employment Commission has filed a complaint against two different companies alleging discrimination against individuals because of their actions to change gender and allegations the employee was terminated because of such conduct. These are the first cases brought by the EEOC since it took the position in 2012 that transgender discrimination is prohibited as a type of sex discrimination.

In one case, a medical clinic terminated a properly performing employee who was biologically male but began dressing as a woman and informed the employer that she was transgender. In the other case, a funeral home terminated a biologically male employee after she informed the company she was planning to transition from male to female and would soon be coming to work dressed as a woman.

Both of these cases focused on discrimination based on sex as a violation of Title VII which prohibits discrimination based on sex under federal law. 

This is a new area of enforcement being pursued by the EEOC. We cannot say that this is a trend but it certainly sends a signal that employer actions based upon some level of consideration of the transgender employee and his/her conduct will be subject to review and scrutiny by the Equal Employment Opportunity Commission. We are not aware of any initiatives in Wisconsin by the Equal Rights Division, but there certainly is anticipation the Equal Rights Division will take the same position.

Employers must be cautious if they are confronted with this situation to avoid being accused of sex discrimination in the manner in which they handle the employment status of a transgender employee.

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