By:  Amy Epstein Gluck

Sex stereotyping is a form of sex discrimination.

Sex discrimination violates the law.

That is all.

Kidding!

But, really, this cannot be emphasized enough. One tire company learned this the hard way, i.e., expensively.

What happened? Well, the plaintiff, a person named Woodward, applied for a position at one of the tire company’s Colorado locations. Allegedly, a manager interviewed Woodward, and the two hit it off during the interview to the point that the manager told Woodward he had the job as long as he completed some background screenings.

The manager even Woodward a tour of the facility and introduced him to others as the new manager, according to the complaint.

But, alas. Woodward was not hired. You see, the manager who interviewed Woodward did not realize he was a transgender man.

Oops.

When Woodward filled out the forms for the background check, he used his former name—one that is typically female. He also identified his gender as female.

The company manager allegedly checked with Woodward that he correctly filled out the form, and…you can guess what happened. Woodward affirmed his gender as female, and he did not get the job.

The U.S. Equal Employment Opportunity Commission (EEOC) filed the suit in September 2017 in U.S. District Court in Colorado alleging that the company illegally discriminated against Woodward because of his sex and for not conforming to gender stereotypes, violating his federal rights “with malice and reckless indifference.” (EEOC v. A&E Tire, Inc., Civil Action No. 17-cv-02362-RBJ)

The company denied all allegations.

Is Transgender Status a Protected Class?

No. Not explicitly under federal law.

Now, as we know (because Eric Meyer has told us here), the Department of Justice has taken the position that Title VII of the Civil Rights Act of 1964 (Title VII), the federal employment discrimination law, does not cover discrimination against an individual because of the individual’s gender identity.  Title VII does not provide workplace protection specifically on the basis of sexual orientation or gender identity as separate categories. Those terms are not in the federal law. Neither is “sexual harassment.” Just sayin’.

BUT, Title VII sure does prohibit sex discrimination, i.e., discrimination “on the basis of” sex.

As Rich Cohen and I have written about, herehere, and here, federal appeals courts are divided about whether Title VII prohibits sexual orientation and gender identity discrimination since these are not explicitly protected classes in the text Title VII.

However, discrimination on the basis of gender stereotypes, i.e., how an employee or applicant should look, dress, and act, is unequivocally illegal. As SCOTUS (the U.S. Supreme Court) ruled in the seminal case Price Waterhouse v. Hopkins :

an employer who acts on the basis of a belief that a woman cannot be aggressive, or that she must not be, has acted on the basis of gender…An employer who objects to aggressiveness in women but whose positions require this trait places women in an intolerable and impermissible Catch-22: out of a job if they behave aggressively and  out of a job if they do not. Title VII lifts women out of this bind.

Thus, in Price Waterhouse, SCOTUS condemned sex stereotyping as a form of sex discrimination finding that allegations of gender identity and transgender discrimination based on non-conformance with gender norms and outdated stereotypes necessarily involve sex discrimination.

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The 2d Circuit took this same approach in Zarda v. Altitude Express when it ruled that the district court correctly determined that an employee was fired just because of her failure to conform to sex stereotypes, in violation of Title VII, and stated that:

…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 [the employer] violated Title VII by firing Stephens because she is transgender and transitioning from male to female.

…It is analytically impossible to fire an employee based on that employee’s status as transgender … without being motivated, at least in part, by the employee’s sex.

The Sixth Circuit held the same was true in EEOC v. R.G. &. G.R. Harris Funeral Homes, Inc., concluding that “[D]iscrimination against employees, either because of their failure to conform to sex stereotypes or their transgender and transitioning status, is illegal under Title VII.”

Currently, 20 states and the District of Columbia prohibit discrimination based on gender identity and sexual orientation. You can see which ones are included here.

But How Did This Case Resolve?

So, back to Woodward, the company denied that its manager discriminated against him, but settled by entering into a consent decree with the EEOC.

As part of the settlement, the company agreed to make it clear in its employment policies that it will not tolerate sex discrimination, including discrimination based on sex stereotyping and transgender status, and to train its managers and employees on the laws prohibiting those forms of discrimination.

The EEOC news release, here, said:

In doing so, the district court recognized that discrimination against transgender individuals is discrimination based on sex stereotyping because transgender individuals identify as a sex different from their birth-assigned sex.

A&E also agreed to pay $60K to Woodward along with a letter of apology.

Employer Takeaways

Do not find yourself a defendant is such a lawsuit. Here’s how:

  • Ensure your anti-discrimination and anti-harassment policy in your employee handbook includes sex stereotyping.
  • Employers must ensure that they disseminate these policies throughout the workplace, updated as needed, and understood by all of your employees, including supervisors;
    • What does that mean? Training.
  • Provide regular, interactive training to your employees, yes, but to your supervisors and HR staff too so that they can recognize, respond to, and prevent unlawful discrimination and harassment based on sex stereotypesGive examples, fact-based scenarios, pop quizzes, whatever. The point is: HR and supervisors must recognize poor behavior, investigate it, and then follow the company’s own anti-harassment policies.
  • Ensure that senior leaders promote anti-harassment training and anti-discrimination/harassment policies to show commitment from the top of the food chain on down.

Don’t let sex stereotyping fall through the cracks. A lawsuit takes significant time and resources to defend, and sex stereotyping is illegal. Notably, discrimination based on sexual orientation and/or gender identity or expression is illegal in multiple jurisdictions—even if Title VII does not include it.