EEOC Transgender Bias Lawsuit Bolsters Agency Enforcement Plan

The EEOC has filed a lawsuit on behalf of a transgender plaintiff for the first time in six years in a move that appears to back up its commitment to helping what it considers vulnerable workers.

The workplace civil rights agency in its suit against T.C. Wheelers Bar & Pizzeria accused the company of forcing an employee to quit to escape repeated harassment, which amounts to sex discrimination under Title VII of the Civil Rights Act of 1964.

That focus on “vulnerable workers,” including LGBTQ individuals, was part of the US Equal Employment Opportunity Commission’s draft Strategic Enforcement Plan released in January. Those heightened enforcement efforts include a focus on harassment and retaliation.

“The allegations in the EEOC’s complaint against T.C. Wheelers fit those objectives to a tee,” said Andrew Scroggins, a partner at Seyfarth Shaw LLP.

Workers and management at the Tonawanda, N.Y., pizzeria harassed the worker by intentionally misgendering them, asking invasive questions about their body, and making anti-trans comments, according to the agency’s complaint.

The 2020 US Supreme Court ruling in Bostock v. Clayton County made clear that gender identity and sexual orientation is protected under Title VII of the Civil Rights Act of 1964, making it easier for the EEOC and private plaintiffs to bring allegations of discrimination based on LGBTQ status. But commission politics until recently made it difficult for the agency to actually file such lawsuits.

Litigation Authority

The last time the EEOC brought a lawsuit on behalf of a transgender worker was in 2017, when it represented a worker who alleged that A&E Tire Inc. rescinded its job offer after learning they were transgender. That case settled in 2019 for $60,000.

The EEOC’s Republican majority voted in March 2020 to give the commissioners, rather than the EEOC general counsel, more power to choose which cases to bring. Generally, the commission only votes on resource-intensive cases or those pushing novel legal arguments.

Under current rules, modified in January 2021, a majority of the commission must vote on whether certain cases that don’t fit that criteria warrant the panel’s approval. Republican commissioners have been more keen to exert that authority than Democrats.

Former EEOC Commissioner Janet Dhillon, who led the EEOC during the Trump administration, exited the commission in November 2022, leaving a 2-2 split on the panel. An EEOC spokesperson said the commission didn’t vote on moving forward with the case against T.C. Wheelers because a majority of the panel didn’t seek approval.

Commissioners voted on and rejected bringing more litigation overall when Republicans held a majority on the panel. In October 2021, the commission voted 3-2 against filing another lawsuit alleging discrimination based on transgender status. The EEOC’s three Republican commissioners at the time voted against moving forward with the suit.

Conciliation First

It’s more common for the EEOC to resolve charges during conciliation, a process that’s required before the agency files a lawsuit. The EEOC has resolved at least two charges pertaining to discrimination against transgender workers since 2017.

The agency in 2018 reached a $100,000 conciliation agreement with an Applebee’s franchisee for not addressing harassment a transgender waitress was receiving from customers. The EEOC announced in 2021 that it reached a $60,000 conciliation agreement with Frizzell Furniture over allegations that the company refused to hire an individual because they are transgender.

The Bostock decision made it clear Title VII extends to gender identity, thus protecting transgender workers. But before 2020, plaintiffs had to rely on the more narrow 1989 Supreme Court ruling in Price Waterhouse v. Hopkins, which cemented the idea that employers can’t punish workers if they don’t fit gender stereotypes.

“It makes perfect sense that the EEOC is bringing more cases like this, after the result of the Bostock case,” said Brian Sutherland, an attorney at plaintiff firm Beal Sutherland Berlin & Brown LLC.

State legislation targeting transgender individuals has reached record numbers this year, with many bills seeking to regulate access to bathroom facilities and medical procedures. Though states can’t enforce legislation that undermines Title VII and Bostock, employers may not understand their legal obligations to transgender workers and job candidates.

“From a political standpoint, I think that it can be difficult for individuals or employers to wrap their head around allegations that relate to the transgender community,” said Emily Massey, an attorney at Ward and Smith PA. “But when it comes to the law, I think it’s clear.”