EEOC Files New Lawsuit Against Company Claiming Transgender Discrimination

Earlier this week the U.S. Equal Employment Opportunity Commission (EEOC) filed a lawsuit in North Carolina accusing the chicken and biscuits restaurant chain Bojangles of unlawful sexual harassment.  Specifically, the EEOC claims that Bonjangles supervisors harassed a female employee because of her gender identity, telling her that she needs to look more like a man, to dress and act more like a man, going so far as to prohibit her from entering the restaurant until she stopped wearing dresses.

This case is one of a handful of cases brought by the EEOC against employers seeking to apply Title VII’s prohibition of sexual discrimination and sexual harassment to transgender or gender identity situations.  Notably, Title VII does not expressly prohibit discrimination based on a person’s gender identity.  The EEOC, however, has taken the position that discriminating against an employee (or applicant) because of his/her gender identity is akin to sex-based discrimination, and is therefore prohibited by Title VII.  It is an argument that has not been universally recognized by the federal courts, but that does not appear to have deterred the EEOC.  The coming months will determine how successful the EEOC is in North Carolina with its expansion of Title VII’s protections for employees and applicants.

There is a growing movement among states and at the federal administrative level, beyond just the EEOC, to expand employment law protections to transgender individuals.  Several states, including Minnesota, have already extended protections under their human rights laws to transgender people.  It would not be surprising to see federal action on this issue in the coming years officially amending Title VII to add gender identity to one of the core protections of the Act.  As part of our HR Best Practices series we recently conducted a webinar on this exact topic, which you can find by logging in to the HR Hotline website at http://www.thompsoncoe.com/OurFirm/HRHotlineProgram.

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