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The Saga Continues for Title VII and Transgender Identity

Much like Star Wars fans anticipate the rolling out of Episode after Episode, I have observed the developing landscape of Title VII sex discrimination with the sort of excitement that ordinarily warrants a big tub of popcorn.  The most recent activity is no exception.

Two weeks ago, we reported on the Department of Justice’s statement that sexual orientation is not – nor should be – a protected category under Title VII.

Last week, the Equal Employment Opportunity Commission’s Acting Chair, Victoria Lipnic, reaffirmed the EEOC’s position that workplace discrimination because of sexual orientation is sex-based discrimination under Title VII. This makes clear the EEOC will continue to investigate Title VII claims of discrimination based on sexual orientation and transgender identity.

Earlier this week, two former employees of an Amazon packing center sued Amazon in federal court for unlawful discrimination based on transgender identity.  Plaintiffs Allegra Shaw-Lane and Dane Lane, a married couple that worked together at the packing center, allege that they both experienced “escalating and unrelenting discrimination and harassment” because Shaw-Lane is a transgender female.

The 21 count complaint includes claims for hostile work environment, retaliation and constructive discharge under Title VII, as well as failure to provide reasonable accommodation, hostile work environment, and retaliation under the Americans with Disabilities Act.  The complaint asserts that the discrimination the plaintiffs faced because of Shaw-Lane’s transgender identity constitutes unlawful sex discrimination under Title VII.  It alleges that Shaw-Lane experienced unlawful discrimination based on other employees’ perception of her being disabled because of gender dysphoria.  The lawsuit also raises a breach of contract claim, alleging that Amazon has an employment policy to prevent discrimination based on sex and gender identity but did not follow it by permitting such discrimination to occur.  (I happen to have blogged on the importance of developing lawful employment policies and following them just two days ago.)

The plaintiffs filed their complaint in the U.S. District Court for the Eastern District of Kentucky, which sits in the Sixth Circuit Court of Appeals.  The Sixth Circuit takes a cautious stance on Title VII’s coverage of claims based on transgender identity: “[T]he prohibition against gender discrimination in Title VII can extend to certain situations where the plaintiff fails to conform to stereotypical gender norms….[A] label, such as ‘transsexual,’ is not fatal to a sex discrimination claim where the victim has suffered discrimination because of his or her gender non-conformity.”  Mickens v. GE Co., No. 3:16CV-00603-JHM, 2016 U.S. Dist. LEXIS 163961, at *8-9 (W.D. Ky. Nov. 28, 2016) (internal citations omitted).

All of this action suggests that the Supreme Court will hear, and perhaps decide, whether Title VII protects employees from discrimination based on transgender identity and sexual orientation.  This audience member in particular is anxious for such a decision to unfold.

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