If you are one of the nearly 1.4 million Americans who identify as transgender or transsexual, finding and maintaining employment can be challenging. Many LGBT employees are afraid to come out at work. They are worried that their employers will fire them, discriminate against them, or make their workplace a hostile, and even dangerous, place to be. When that happens, it may be hard to know where to turn for protection against sexual harassment of a transgender employee.

In this blog post, I will review EEOC v. Bojangles, a lawsuit recently filed by the Equal Employment Opportunity Commission (EEOC) on behalf of a transgender employee. I will explain sex discrimination protections that are available to Trans* individuals. I will also review the cases that protect against discrimination based on sexual stereotypes.

The EEOC & Sexual Harassment of Trans* Employees

The EEOC interprets Title VII of the United States Civil Rights Act to protect transgender employees. Title VII does not explicitly state protection based on sexual orientation or gender identity, but the EEOC has read the law’s prohibitions against sex discrimination to apply regardless of gender expression. That includes protections against sexual harassment and retaliation against members of the Trans community.

Protection Against Sex Discrimination

If an employee, including a transsexual employee, has been discriminated against by an employer, he or she is entitled to protection and compensation. Employers are not allowed to treat a person unfavorably because of that person’s sex (including the failure to meet gender stereotypes). A worker may not be fired, passed over for a job or promotion, paid differently, or denied access to training or benefits on the basis of sex. All of this amounts to sex discrimination and is illegal under Title VII.

The law also protects against sexual harassment, including offensive remarks about a person’s sex, as long as they are severe enough to create a hostile work environment or result in an adverse employment decision. In addition, the Civil Rights Act prohibits discrimination in retaliation for filing a sex discrimination complaint, whether internally or through the EEOC.

EEOC v. Bojangles Restaurants, Inc.

Earlier this year, the EEOC took a stand against transgender sexual harassment by filing a lawsuit against Bojangles Restaurant Inc., in North Carolina. The complaint alleged that the restaurant violated federal law by subjecting a transgender employee to a hostile work environment and retaliating against her when she reported the sexual harassment.

The employee, whose legal name was Jonathan Wolfe, was a transgender woman working in Fayetteville, North Carolina. Wolfe identifies and presents as a woman. While on the job, Wolfe’s employers demanded that she act and dress in ways that are stereotypically male, based on the sex she was assigned at birth. Wolfe reported her manager and assistant managers’ belittling comments on at least two occasions, without results. Wolfe was then fired in retaliation shortly after filing her last complaint.

The EEOC has taken the position that Bojangles’s demands and firing were sex discrimination and sexual harassment in violation of Title VII. After trying to reach an out-of-court resolution, the agency has sued the company for back pay, compensatory damages, and punitive damages. In a statement, Lynette Barns, regional attorney for the EEOC’s Charlotte District said:

“All employees have the right to work in an environment free from sexual harassment and gender stereotypes. . . . Federal law provides transgender employees protection from sex discrimination in the workplace.”

Courts Agree: Transgender Workers Are Protected

The United States Supreme Court has held that employment discrimination based on sex stereotypes is prohibited by Title VII. In 1989, the court decided Price Waterhouse v. Hopkins, 490 U.S. 228 (1989). There, an employee was passed over for promotion because her employer felt she needed to walk, talk, and dress more femininely. The court said that Title VII’s prohibition against sex discrimination includes the “entire spectrum of disparate treatment of men and women resulting from sex stereotypes.” (quoting City of Los Angeles Dep’t of Water & Power v. Manhart, 435 U.S. 702, 707 n.13 (1978) (internal citation omitted)).

A decade later, in 1998, the Supreme Court decided Oncale v. Sundowner Offshore Services, 523 U.S. 75 (1998). That case, involving a lesbian employee, said that Title VII’s protections “must extend to [sex-based] discrimination of any kind that meets the statutory requirements.”

This includes when transgender workers are treated differently or sanctioned because they do not present according to their employer’s gender-based expectations. While the Supreme Court has never ruled specifically on a gender identity discrimination case, several lower courts have supported the EEOC’s interpretation of Title VII. They have found that several issues specific to the Trans* community are covered by the Civil Rights Act. For example:

• In GG. ex rel Grimm v. Gloucester, __ F.3d __, 2016 WL 1567467 (4th Cir. Apr. 19, 2016), a U.S. Court of Appeals held that schools must provide students access to restrooms according to their gender identity.
• In Glenn v. Brumby, 663 F.3d 1312 (11th Cir. 2011), a circuit court said that a person is considered transgender “precisely because of the perception that his or her behavior transgresses gender stereotypes.”
• In Smith v. City of Salem, 378 F.3d 566 (6th Cir. 2004), a circuit court found sex discrimination when an employee was suspended based on her feminine appearance during her transition from male to female.
• In Barnes v. City of Cincinnati, 401 F.3d 729 (6th Cir. 2005), the court ruled that sex discrimination occurred when a person presenting as male on duty, but living as a woman off duty was demoted based on a reputation as a “cross-dresser” and gender expression.

Get Help Defending Against Transgender Sex Discrimination

There is growing legal support for the position that a transgender person has the right to be free from sexual harassment based on his or her gender identity or expression. If your workplace has turned hostile because you do not fit traditional gender norms, the employment discrimination attorneys at Eisenberg & Baum can help. We have been fighting against employers who mistreat their employees for years, and we are committed to making our office a safe space for you and your loved ones. If you feel like your employer is using your gender identity against you, contact us. We’ll meet with you and help create a strategy that protects you and your rights.