The Equal Employment Opportunity Commission has put out a bold call for cases of discrimination against transgender employees in North Carolina, but will it be able to win any of them?
By Kate Wheeling
North Carolina State Capitol. (Photo: Jimmy Emerson, DVM/Flickr)
A new law was passed last month in North Carolina banning transgender people from using bathrooms that match their gender identify. The new legislation prompted significant backlash: Businesses like Paypal, Apply, and Facebook canceled or pledged not to make any new investments in the state, and other states have since banned government-funded travel to North Carolina.
But the fight for trans rights in the state is far from over. The Equal Employment Opportunity Commission — the federal agency that protects employees against discrimination — is gearing up to take on claims of discrimination from transgender employees in the state, BuzzFeed News reports.
Fewer than four percent of job discrimination cases even make it to trial, and the ones that do make it court typically don’t fare well.
“I want workers to know that even though there isn’t yet a federal equality act protecting them, even though there is not a state law protecting them, and even though city laws have been removed, they can walk into a federal agency called the EEOC,” EEOC Commissioner Chai Feldblum told BuzzFeed. “Their claim will be taken, it will be investigated, and they will get help.”
The agency will argue that forcing employees to use restrooms that conflict with their gender identify violates Title VII of the 1964 Civil Rights Act — a purposefully vague statute that prohibits sex-based discrimination in the workplace. It wouldn’t be the first time the EEOC made such an argument.Last year, Michael Fitzgerald wrote about another EEOC case in New Orleans based on violations of the same Civil Rights Act provision for Pacific Standard: Construction worker Kerry Wood’s complaint against a Boh Brothers Construction Company manager who habitually harassed him for, among other things, his preference for wet wipes over toilet paper.
The EEOC’s argument in that case itself leaned heavily on the precedent set by the 1989 Supreme Court decision in Price Waterhouse v. Hopkins, which hinged on the unlawfulness of “sex stereotyping” in the workplace. In Price Waterhouse v. Hopkins, a female employee with the accounting firm was denied a partnership for being “mannish.” Fitzgerald writes of the Boh Brothers case:
This time, the accusation was that one straight man had imposed gender-conforming demands on another straight man. The EEOC argued that Woods had a right, under Title VII, to be biologically male yet behave in a stereotypically feminine manner. As Tanya Goldman, an EEOC lawyer representing Woods, explained in her opening remarks to a New Orleans federal courtroom in 2011, “If a person discriminates against an employee because the employee does not conform to gender stereotypes, that is also sex discrimination.”
It’s likely the EEOC, emboldened by wins like Boh Brothers v. EEOC andMacy v. Holder, will again try to use the Price Waterhouse v. Hopkins decision to protect transgender employees in North Carolina. The Boh Brothers case was one of the most significant Price Waterhouse-based wins for the EEOC, and in one of the most conservative courts in the nation no less: “Southeast Louisiana juries are not famous for embracing expansive interpretations of the Civil Rights Act,” Fitzgerald wrote.
But even with momentum on its side, the EEOC will likely have a battle on its hands with any cases coming out of North Carolina. Fewer than four percent of job discrimination cases even make it to trial, and the ones that do make it court typically don’t fare well. “A battery of recent studies shows that employees who sue over discrimination lose at a higher rate in federal court than other types of plaintiffs,” Nathan Koppel wrote in the Wall Street Journal in 2009. “They also get less time in court, with judges quicker to throw out their cases.”
Beyond that, sex-stereotyping arguments are not always successful in cases involving the private sector. In the early oughts, Darlene Jespersen was fired from her bartending job at Harrah’s Casino in Reno, Nevada, for failing to comply with the company’s “Personal Best” appearance policy. In other words, she didn’t wear enough make-up. “I had to become a sex object. And it was only because I am a woman…. The men who worked by my side did not have to conceal their faces,” she wrote in the Reno Gazette in 2004. Jespersen sued the Casino on the grounds that its policy violated Title VII, but ultimately lost.
“Courts have long permitted differential grooming codes for men and women so long as the codes do not impose an ‘undue burden’ on one gender, and Harrah’s code arguably treated men and women the same despite having different requirements for each,” Michael Selmi, a law professor at George Washington University, explained in the Duke Journal of Gender Law & Policy in 2007. And the EEOC itself has had mixed results in arguing that the Civil Rights Act’s anti-sex discrimination provision applies to transgender workers.
“Courts have not consistently upheld that Title VII’s ban on sex discrimination includes anti-transgender discrimination in cases of banning restroom use — and, to date, no federal appeals court has upheld that interpretation,” BuzzFeed News reported. But with new, discriminatory laws in both North Carolina and Mississippi, it seems the EEOC will have plenty of opportunities to make their case.