EEOC Seeks Solid LGBT Discrimination Cases

By Crystal A. Proxmire

While sexual orientation is not yet a protected class, the U.S. Equal Employment Opportunity Commission (EEOC) is fighting hard within existing legal parameters to bring justice to those in the community who are discriminated against. By investigating cases of discrimination as "gender-based bias," meaning that LGBT people do not conform to employers' expectations of how a man or a woman should behave or present themselves, an employer can still be in violation of Title XII of the Civil Rights Act.

The EEOC is actively seeking cases in Michigan to help them establish this precedent. Courts at various levels have come to a similar conclusion over the past few years, but the EEOC sets the rules that the entire country must follow, including the 34 states that currently don't have employment protections specifically for transgender people.

Gail Cober of the EEOC's Detroit Field Office has been doing outreach to the LGBT community in hopes of finding "solid cases" to help establish precedent for protection under the sex discrimination provision, not just for transgender people but also gay males who have faced discrimination for not fitting masculine stereotypes and lesbian females who have faced it for not conforming to feminine stereotypes. There has not yet been a case involving sexual orientation, but it seems a natural fit to Cober and others who understand that non-conformity with the gender-related expectations of others is the same fundamental issue that transgender workers face.

Cober explained, "Our strategic plan is to look for cases of transgender, gay and lesbian discrimination. We do want strong cases - individuals who have clearly been discriminated against because of sex stereotyping. Sometimes discrimination occurs, but it's mixed with other issues, like if an employee has attendance issues or other disciplinary action. If we want good case law we need to find the cases that are really clear."

That's why she has been contacting LGBT community centers and working with the ACLU's LGBT Project to get the word out. Cober recently spoke at a meeting of the Community Center Network, sharing this information with leadership from seven LGBT centers across the state. "We need you to go back to your organizations and get the word out about this," Cober said. "People don't always know where to turn for help. Or they assume that we can't hear their case because they're not included [in Title XII protections]. You are the ones on the ground who hear about cases, who people come to for help. Now it the time to reach out and help people get their cases heard."

In April 2012, a case in Arizona opened the door for LGBT-related cases to be litigated as gender bias. In this case, Mia Macy had been going through the interview and background check process for a position with the Bureau of Alcohol, Tobacco, firearms and Explosives in the Walnut Creek Lab. Macy is trained as a National Integrated Ballistic Information Network Operator and a Brass Trax Ballistics Investigator. She had previously been a police detective in Phoenix and was well-qualified for the position. The Director told her the job was hers pending a background check, and then connected her with a third party contractor to begin the process. Everything was going well until the Director learned that Macy, who had been presenting as a male when applying for the job, would be reporting to work as a woman. Five days after the Director learned of her transition, Macy was informed that due to federal budget restrictions the position was no longer available.

However, the position was available, and it is given to someone else. Macy filed a complaint based on "sex stereotyping." Cases of sex stereotyping are backed up by the 1989 Price Waterhouse case where a woman was denied a promotion, after being told she would improve her chances if she would "walk more femininely, talk more femininely, dress more femininely, wear make-up, have her hair styled, and wear jewelry." In that case the Court concluded that discrimination for failing to conform with gender-based expectations violates Title VII, having discriminated on the basis of gender. The decision further clarified the illegitimacy of allowing "sex-linked evaluations to play a part in the [employer's] decision-making process."

While the Price case set precedent, the Macy case has applied it further, making it possible for transgender individuals to apply it in their own circumstances.

The Macy case has not yet been settled, but the April 20, 2012 decision allows Macy to proceed through the internal appeal process on the basis of sex discrimination.

This determination has energized the EEOC to be more proactive, with agents nationwide seeking out cases involving not only transgender individuals, but also gays and lesbians who have faced discrimination because of sex stereotyping.

The EEOC is also partnering with the Michigan Department of Civil Rights. Each agency is able to handle discrimination, but with slightly different requirements.

For the EEOC to consider a case, the company must have 15 or more employees, and the complaint must be filed within 300 days of the incident. State level claims with the Michigan Department of Civil Rights must be filed within 180 days. Both agencies are tasked with determining the facts of a case, and not in advocating for one side over another. "The EEOC is neutral. We look for facts and apply law," Cober said.

One does not need an attorney to meet with either agency, and if a case is clear they may not need one at all. However complainants are welcome to get an attorney if they want one, and both agencies have attorney referral lists.

The Detroit Field Office of the EEOC handles complaints from all of Michigan plus 15 counties in NW Ohio. Often complaints are resolved with settlements and never make it into the courts. While this is helpful for those who filed the complaints, the complaints never make it into public records and it does not help establish legal precedent for cases that may come after it. For example, Cober said, her office has successfully resolved four cases of gender discrimination involving transgender people, but privacy protections prevent the agency from making the details of those cases public. She did say that one involved a hospital, one involved a school system settlement, one involved a grocery store chain and another was a business that lost in mediation. She said that the EEOC gets positive results for 20-25 percent of the complainants.

Anyone who feels they have been the victim of employment discrimination in Michigan, or those 15 counties in Ohio, can make a complaint at the EEOC Detroit Field Office in the Patrick V. McNamara Building at 477 Michigan Avenue Room 865, Detroit, MI 48226. Information about filing a complaint can also be found at http://www.eeoc.gov/field/detroit/charge.cfm.

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