U.S. Equal Employment
Opportunity Commission
Recent events, including the filing of two EEOC lawsuits on behalf of transgender employees and an amicus brief in the 7th Circuit related to coverage of sexual orientation, have triggered increased interest about protections for lesbian, gay, bisexual and transgender (LGBT) individuals under federal employment-discrimination laws. The information below highlights what you should know about the EEOC's enforcement efforts in this area.
The EEOC is responsible for enforcing federal laws that make it illegal to discriminate against a job applicant or an employee because of the person's race, color, religion, sex (including pregnancy), national origin, age (40 or older), disability or genetic information. These federal laws also prohibit employers from retaliating against workers who oppose discriminatory employment practices - for example, by reporting incidents of sexual harassment to their supervisor or human resources department - or against those who file EEOC charges or cooperate with an EEOC investigation. Also, where these federal laws apply, they protect all workers, regardless of sexual orientation or gender identity.
Employers and employees often have questions about whether discrimination related to LGBT status is prohibited under the laws the EEOC enforces. The Commission's Strategic Enforcement Plan (SEP), adopted by a bipartisan vote in December of 2012, lists "coverage of lesbian, gay, bisexual and transgender individuals under Title VII's sex discrimination provisions, as they may apply" as an enforcement priority for FY2013-2016. This enforcement priority is consistent with positions the Commission has taken in recent years regarding the intersection of LGBT-related discrimination and Title VII's prohibition on sex discrimination.
In 2012, the EEOC held that discrimination against an individual because that person is transgender (also known as gender identity discrimination) is discrimination because of sex and therefore is prohibited under Title VII of the Civil Rights Act of 1964. See Macy v. Department of Justice, EEOC Appeal No. 0120120821 (April 20, 2012). The Commission has also found that discrimination against lesbian, gay, and bisexual individuals based on sex-stereotypes, such as the belief that men should only date women or that women should only marry men, is discrimination on the basis of sex under Title VII. See Veretto v. United States Postal Service, EEOC DOC 0120110873 (July 1, 2011) (accepting Title VII sex discrimination claim alleging that supervisor harassment was motivated by sexual stereotype that men should only marry women); Castello v. United States Postal Service, EEOC DOC 0520110649 (December 20, 2011) (accepting Title VII sex discrimination claim alleging that supervisor harassment was motivated by sexual stereotype that having relationships with men is an essential part of being a woman); Complainant v. Dep't of Homeland Sec., EEOC DOC 0120110576 (August 20, 2014) (reaffirming prior findings that federal employees discriminated against on the basis of sexual orientation can establish violations of Title VII based on the sex stereotyping theory).
Consistent with these Commission rulings (and case law from the Supreme Court and other courts), the Commission has instructed our investigators and attorneys that discrimination against an individual because that person is transgender is a violation of Title VII's prohibition of sex discrimination in employment. Therefore, the EEOC's district, field, and area offices have been instructed to take and investigate (where appropriate) charges from individuals who believe they have been discriminated against because of transgender status (or because of gender identity or a gender transition).
In addition, investigators and attorneys were instructed that lesbian, gay, and bisexual individuals also may bring valid Title VII sex discrimination claims, and that the EEOC should accept charges alleging sexual-orientation-related discrimination. These allegations might include, for example, claims of sexual harassment or other kinds of sex discrimination,such asadverse actions taken because of the person's failure to conform to sex-stereotypes (such as those listed above).
In January 2013, the EEOC began tracking information on charges filed alleging discrimination related to gender identity and/or sexual orientation. In the final three quarters of FY 2013 (January through September), EEOC received 667 charges raising allegations of sex discrimination related to sexual orientation and 161 charges alleging sex discrimination based on gender identity/transgender status. In the first three quarters of FY 2014, the EEOC had received 663 charges alleging sex discrimination related to sexual orientationand140 charges alleging sex discrimination on the basis gender identity/transgender status.
The chart below shows charges resolved between January 2013 and June 30, 2014 that included an allegation of sex discrimination related to gender identity or sexual orientation:
FY2013 | FY2014 through 3rd Q | |||||
---|---|---|---|---|---|---|
Total | Sex - Gender Identity / Transgender | Sex - Sexual Orientation | Total | Sex - Gender Identity / Transgender | Sex - Sexual Orientation | |
Total Receipts | 801 | 160 | 667 | 784 | 140 | 663 |
Pending | 173 | 45 | 133 | 386 | 74 | 319 |
Resolved | 628 | 115 | 534 | 398 | 66 | 344 |
Settlements | 62 | 9 | 55 | 38 | 10 | 30 |
Withdrawal w/Benefits | 33 | 6 | 28 | 22 | 22 | |
Reasonable Cause | 16 | 7 | 9 | 1 | 1 | 1 |
% Reasonable Cause | 2.5% | 6.1% | 1.7% | 0.3% | 1.5% | 0.3% |
Successful Conciliation | 10 | 3 | 7 | |||
Unsuccessful Conciliation | 6 | 4 | 2 | 1 | 1 | 1 |
Merit Resolutions | 111 | 22 | 92 | 61 | 11 | 53 |
% Merit Resolutions | 17.7% | 19.1% | 17.2% | 15.3% | 16.7% | 15.4% |
No Reasonable Cause | 420 | 78 | 357 | 251 | 33 | 223 |
Administrative Closures | 97 | 15 | 85 | 86 | 22 | 68 |
Monetary Benefits | $1,874,148 | $421,701 | $1,561,671 | $884,659 | $149,933 | $747,225 |
Note: Charges may have multiple allegations so totals will not tally with breakdowns of specific bases or issues.
Further information on our charge receipts and resolutions under Title VII can be found here.
The Commission has begun to file LGBT-related lawsuits under Title VII challenging alleged sex discrimination. Most recently the Commission filed two lawsuits involving sex discrimination against transgender individuals:
Additionally the Commission has filed several amicus briefs and successfully conciliated charges involving these issues.
In the Federal Sector, EEOC has been implementing the SEP priority with regard to the coverage of LGBT individuals in a variety of ways:
Finally, EEOC staff are addressing LGBT legal developments in numerous outreach and training presentations to the public. During the first three quarters of FY 2014, field office staff conducted over 350 events where LGBT sex-discrimination issues were among the topics discussed. These events reached a wide variety of audiences, including employee advocacy groups, small employer groups, students and staff at colleges and universities, staff and managers at federal agencies and human resource professionals. To assist in this outreach the EEOC developed a brochure, Gender Stereotyping: Preventing Employment Discrimination of Lesbian, Gay, Bisexual or Transgender Employees.