Tag Archives: sex discrimination

6th Circuit Holds Firing Because of Transgender Status Violates Title VII

Last week the U.S. Court of Appeals for the 6th Circuit, which covers Tennessee, Michigan, Kentucky and Ohio, issued a significant Title VII ruling.  In EEOC v. R.G &G.R. Harris Funeral Homes the Court held that discrimination on the basis of transgender and transitioning status is sex discrimination in violation of Title VII.

The EEOC sued the funeral home after it fired an employee, Stephens, who was transitioning from male to female.  It was undisputed that Stephens was fired because he was “no longer going to represent himself as a man” and “wanted to dress like a woman”.  In 2016  a Michigan  District Court dismissed the case based on the Religious Freedom Restoration Act of 1993 (‘RFRA”),  because the employer’s sincerely held religious belief “is that a person’s sex is an immutable God-given gift”.  The EEOC appealed.

In reversing the District Court and rejecting the RFRA defense the Court of Appeals held that Stephens was fired because of her failure to conform to sex stereotypes, in violation of Title VII.   While this type of claim has been recognized under Title VII since 1989 when it comes to men and women not conforming to the traditional stereotypes for their gender ( e.g. “you are not feminine enough”‘; “you dress too masculine”), the 6th Circuit took it a step further with this holding:

Discrimination on the basis of transgender and transitioning status is necessarily discrimination on the basis of sex, and thus the EEOC should have had the opportunity to prove that the Funeral Home violated Title VII by firing Stephens because she is transgender and transitioning from male to female.”

This is a landmark ruling that employers located within the 6th Circuit must adhere to going forward.  If you have questions about how it impacts your business, give us a call.

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EEOC Equal Pay Directed Investigation

Recently I attended a presentation given by Shirley Richardson, the Deputy Director for the EEOC – Memphis District. Ms. Richardson focused on the EEOC’s current Strategic Initiatives. I previously wrote about those initiatives here.

One of the EEOC’s Strategic Initiatives is enforcing equal pay laws. One method the EEOC can use to enforce equal pay laws is an Equal Pay Directed Investigation. A Directed Investigation can be conducted without an EEOC Charge being filed.

Basically, the EEOC will send a letter to the employer stating that it is conducting an investigation and will ask to review the pay records for male and female employees. The Directed Investigation is similar to an audit by the Department of Labor, but the focus is on whether discrimination has occurred on the basis of gender.

Employers should conduct an internal audit of their payroll records to ensure that men and women are paid equally for equal work. Discrepancies in pay between men and women must be tied to legitimate, non- discriminatory reasons which are applicable to the job. These reasons could include differences in education, experience and seniority.

The failure to conduct an internal equal pay audit may result in problems for the employer if it faces an EEOC Charge or Directed Investigation. Be proactive and conduct the audit now to avoid problems in the future.

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Fifth Circuit Holds Title VII Protects Nursing Mothers From Being Fired For Expressing Breast Milk

Recently the U.S. Court of Appeals for the Fifth Circuit held that Title VII, as amended by the Pregnancy Discrimination Act,  protects nursing mothers from being fired for lactating or expressing breast milk.  The plaintiff was allegedly fired after asking to use a breast pump at work.  In reaching its decision the Court held that firing someone because of lactation or breast pumping is sex discrimination.

This is a big victory for the EEOC, who brought the case on behalf of the plaintiff.  This win also highlights one of the EEOC’s priorities in its Strategic Enforcement Plan, which is to identify emerging areas in equal employment law, including pregnancy-related issues.

Most employers know that the Fair Labor Standards Act was amended in 2010 to require them to provide both a reasonable break time and a place, other than a bathroom, for an employee to express breast milk for up to a year after a child’s birth.  The Fifth Circuit has now made it clear that Title VII also protects employees who are fired for expressing breast milk.

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