Expanding The Civil Rights Act Definition Of “Sex” To Include Transgender

The EEOC recently filed suit in Illinois Federal Court against Rent-A-Center East, Inc.  The Complaint alleges that Rent-A-Center fired Megan Kerr (“Kerr”), a transgender employee after Kerr informed supervisors of her intent to transition from male to female.

The EEOC alleges that supervisors fired Kerr in 2014, after seeking to discharge or force Kerr to quit for more than one year after she informed them that she was transgender.

The Complaint alleges that the, “effect of the practices…has been to deprive Kerr of equal employment opportunities and otherwise adversely affect her status as an employee because of her sex.”  [Emphasis added.]

Per the Complaint, Kerr started working for Rent-A-Center in 2005 until termination in 2014.

In March 2013, Kerr informed the store manager that he identified as female and was transitioning to female gender.  She also informed the manager that she was legally changing her name to Megan.

The store manager informed the district manager, who allegedly informed the store manager to document infractions in order to create cause for termination.

The EEOC alleges that Kerr asked her supervisor to use a company truck on a Sunday to deliver furniture to a local civil organization.  While the store was normally closed on Sunday, on occasion deliveries were made to charitable organizations as a community service.  The Complaint also alleges that the supervisor granted Kerr’s request, but terminated Kerr on the Monday immediately after, because Kerr’s use of a company vehicle on a Sunday violated company policy.

The EEOC seeks back pay, emotional and psychological damage, and punitive damages.  More importantly, the EEOC seeks a permanent injunction prohibiting Rent-A-Center from discrimination on the basis of sex.

Title VII states that it is unlawful for an employer, “to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin.”           42 U.S.C. §2000e-2(a)

This case and other recent cases are re-examining what “sex” means under the Act.  Quoting from Fabian v. Hosp. of Cent. Conn., 2016 U.S. Dist. Lexis 34994 (U.S.D.C. for Dist. of Conn., March 18, 2016) the issue can be framed as this:

“If an employer does not discriminate against women as a class or against men as a class, but does discriminate against transgender people (irrespective of whether they are transgender men or transgender women), does that employer violate Title VII?” At *20.

The Court in Fabian denied the defendant’s motion for summary judgment, holding that “discrimination on the basis of transgender identity is cognizable under Title VII.”  At *47.

In Kerr, the EEOC’s Complaint is not really attempting to prohibit/punish discrimination against female employees.  The EEOC is really trying to prohibit discrimination against an employee who is changing their sex (i.e. transgender).  Arguably, “transgender” is a distinguishable class/category, which is not covered by the Act.  If “transgender” is a distinguishable class, then the EEOC is creating a new protectable class, but combining the two classes/categories of individuals into one already existing class that is protected under the Act.  Given the current political climate and congressional make up, this is understandable as an amendment to the Act at this time is unlikely.

Given that this is an issue that the EEOC is actively pursuing and courts are allowing these actions to proceed, it seems likely that this will be an issue that makes it to the Appellate level and possibly the Supreme Court in the next few years.  In the meantime, employers should treat “transgender” as a protected class and take steps to prevent any such discrimination in order to avoid litigation.