Transgender Employment Discrimination Standards Tested in U.S. Courts

California is one of the few states that prohibits transgender discrimination in housing and employment. Cal. Gov’t. Code Section 12940(a) stipulates it’s unlawful for an employer to refuse to hire or employ someone or to discharge from employment or to discriminate against a person in compensation or in terms, conditions or privileges because of one’s gender identity. transgender discrimination

However, many other states lack such protections, and now, one transgender discrimination in employment case out of Michigan could go before the U.S. Supreme Court, potentially making it lawful for workplaces around the country to take adverse employment actions against workers on the basis of their sexual identity.

As reported by Lawrence-Journal World, the Kansas Attorney General is joining with officials from 15 other states, asking the U.S. Supreme Court to expressly declare transgender workers not protected by federal workplace anti-discrimination laws. In particular, they are requesting the U.S. Supreme Court reverse a ruling by the 6th U.S. Circuit Court of Appeals in Michigan, which decided the word “sex” used in the federal Civil Rights Act of 1964 – particularly in Title VII – does include transgender status and gender identity. 

In the Michigan case, a transgender woman informed the funeral home where she worked as a funeral director and embalmer that she was transitioning from male to female and intended to dress as a female at work (relevant in light of the fact that the funeral home had strict gender specific dress codes, with men required to wear paint suits and women skirts). Within weeks, the 52-year-old was fired, and given the reason by her devout Christian employer that what she was “proposing to do” was “unacceptable.” This was despite years of positive performance reviews and regular raises.

The U.S. Equal Employment Opportunity Commission launched an investigation following her complaint, finding probable cause of unlawful employment discrimination and sued on her behalf, asking for reinstatement to her job and back pay, as well as a permanent injunction on the funeral home engaging in future gender-based discrimination.

Defendant funeral home had argued it was entitled to engage in such discrimination because firstly, transgender status nor gender identity are protected classes under federal law and that to decide otherwise would be a violation of protections afforded its business under the Religious Freedom and Protection Act. While the federal district court sided with the employer, the appellate court overturned that ruling. Now, more than a dozen state attorneys general and three governors are asking the U.S. Supreme Court to overturn the appellate court’s decision, arguing that the decision oversteps the court’s legal authority by expanding the definition of “sex” and “gender” beyond what lawmakers ever originally wanted.

Advocates for LGBTQ rights say this is yet another attempt by religious groups to chip away at the wall between church and state and further offer an excuse to legally discriminate against Americans.

This case is one of many that may go before the high court, raising questions about whether the term “sex” as written in federal law should include one’s gender identity, an increasingly relevant question as the transgender community has become more and more visible in our communities and our work forces.

Employees in California are uniquely situated and protected, thanks to state laws that expressly extend such protections. Los Angeles gender discrimination attorneys can advise employees of their legal options if they feel they’ve been unfairly treated.

Contact the employment attorneys at Nassiri Law Group, practicing in Orange County, Riverside and Los Angeles. Call 949.375.4734.

Additional Resources:

She came out as transgender and got fired. Now her case might become a test for LGBT rights before the US Supreme Court, Aug. 29, 2018, By Emanuella Grinberg, CNN

More Blog Entries:

Almost Half of LGBTQ Employees Still Hide Identity at Work, July 7, 2018, L.A. Transgender Discrimination Attorney Blog

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