The Transformation of Title VII

 

As 12 states and many cities have added “gender identity” to their anti-discrimination laws to protect transgender employees, more federal courts are applying the sex-discrimination ban in Title VII of the Civil Rights Act of 1964 to protect transgender employees regardless of state law.

 

Until the late 1980s, federal courts had generally dismissed transgender sex-discrimination claims, holding that transgender employees were not a protected class under Title VII. In  Price Waterhouse v. Hopkins, 490 U.S. 228 (1989), however, the U.S. Supreme Court held that Title VII extended to discrimination against a female employee because she had failed to "act like a woman." The employer in that case had instructed the plaintiff to "walk more femininely, talk more femininely, dress more femininely, wear make-up, have her hair styled and wear jewelry."

 

In the years since, federal courts have applied the reasoning in Hopkins to hold that transgender employees have a legitimate sex-discrimination claim when employers use gender stereotypes against them. In Smith v. City of Salem, 378 F.3d 566 (6th Cir. 2004), for example, the court held that a firefighter who was born male but identified as female had a valid claim of sex discrimination under Title VII because he was subjected to ridicule from co-workers and was fired for not acting masculine. The court wrote that “a label, such as ‘transsexual,’ is not fatal to a sex discrimination claim...” because “[s]ex stereotyping based on a person’s gender non-conforming behavior is impermissible discrimination, irrespective of the cause of that behavior.”  

 

Accordingly, employers throughout the U.S. should carefully review their employment decisions, sexual discrimination training practices and policies to avoid needless litigation.