Legal Information About Gender Identity and Sexual Orientation Discrimination Claims
If you believe that you have been the victim of employment discrimination due to your gender identity, sexual orientation, or for gender non-conformance, you should take prompt action to preserve your rights. Specifically, you must contact an EEO counselor within 45 days of any incident of discrimination, or you will lose your ability to pursue the remedies that may be available to you. For more information about the general DOJ complaint process, go to http://www.justice.gov/jmd/eeos/complaintprocess.htm. It is also important for you to know that you have the right to representation throughout this process, including by an attorney or a colleague. Even if you suspect that you have been targeted for discrimination because of your actual or perceived sexual orientation or gender identity, you may also have a claim of sex discrimination that falls within the coverage of Title VII, depending on the facts of your particular case. The rights and remedies available to you will vary depending on how you pursue your claim. For example, the process that currently exists for “pure” sexual orientation claims does not include the right to have an EEOC hearing or to file a civil action. See http://www.justice.gov/jmd/ps/chpt4-1.html.
Federal prohibitions on sex discrimination encompass many (if not all) claims of discrimination against transgender individuals. The most well established legal theory makes clear that discrimination against transgender people because they fail to conform to sex stereotypes is a form of sex discrimination. Price Waterhouse v. Hopkins, 490 U.S. 228, 251 (1989); Smith v. City of Salem, 378 F.3d 566 (6th Cir. 2004). There are two other theories that, in the view of the Civil Rights Division, would allow transgender individuals to pursue claims of discrimination as sex discrimination claims. First, there is sound legal authority for the proposition that discrimination against an individual because she has changed her sex is sex discrimination. Schroer v. Billington, 577 F. Supp. 2d 29, 306-07 (D.D.C. 2008). Second, because there is a strong basis for arguing that gender identity is part of one’s sex both as a factual and legal matter, discrimination on the basis of an individual’s gender identity should be cognizable as a claim of sex discrimination. Schroer, 577 F. Supp. 2d at 306. In December 2014, Attorney General Holder announced that “the Department of Justice will take the position in litigation that the protection of Title VII of the Civil Rights Act of 1964 extends to claims of discrimination based on an individual’s gender identity, including transgender status.” See http://www.justice.gov/opa/pr/attorney-general-holder-directs-department-include-gender-identity-under-sex-discrimination.
Gay, lesbian or bisexual individuals who have experienced discrimination on the basis of their actual or perceived gender non-conformity may also pursue sex discrimination claims under Title VII using the sex stereotyping theory. See, e.g., Prowel v. Wise Bus. Sys., 579 F.3d 285, 290-291 (3d Cir. 2009); Rene v. MGM Grand Hotel, 305 F.3d 1061, 1063-1064 (9th Cir. 2002) (en banc).
Disclaimer: Legal information is not the same as legal advice — the application of law to an individual’s specific circumstances. For this reason, we recommend that you consult a lawyer or knowledgeable colleague if you want professional advice about the law, and its application to your particular situation.