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Breakthrough Settlement in Trans Harassment Case

by John Riley
Saturday Jul 20, 2013
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The national LGBT organizations Freedom to Work and Lambda Legal announced Monday they had reached a settlement with a government contractor based in Maryland on behalf of a transgender woman who said she had been harassed on the job.

The woman filed a complaint with the Equal Employment Opportunity Commission (EEOC), stating she had been subjected to physical and verbal harassment in the workplace for two years. She detailed coworkers using derogatory terms to refer to her, calling her a ’’tranny,’’ ’’drag queen’’ and ’’faggot.’’ The EEOC investigated the complaints and issued a letter in September 2012 that found there was reasonable cause to believe the company violated Title VII of the Civil Rights Act, which prohibits discrimination based on a variety of characteristics, including sex.

’’The investigation revealed that Charging Party was subjected to derogatory gender-based comments that were frequently made by both coworkers and supervisors,’’ the EEOC letter read. ’’Both Charging Party and witness interviews revealed that Respondent’s management failed to take corrective action despite being fully aware of the harassment Charging Party was being subjected to. This lack of corrective action enabled the harassment and offensive atmosphere to continue.’’

According to a statement from Tico Almeida, president of Freedom to Work, the EEOC’s determination of ’’reasonable cause’’ marks the first time the commission has investigated allegations of anti-transgender harassment and ruled for a transgender employee. The EEOC issued a decision in April 2012 finding that discrimination based on a person’s gender identity violates Title VII’s prohibition on sex discrimination.

Notably, there have been other instances in which gender-identity discrimination was determined to be a violation of the prohibition on sex-based discrimination. For example, in 2011, the federal 11th Circuit Court of Appeals, which covers Florida, Georgia and Alabama, ruled in favor of a transgender woman who was fired after informing her employer, the Georgia Legislature, that she was beginning her gender transition.

In the Georgia case, Glenn v. Brumby, the court found the employee was a victim of ’’sex-based discrimination that is subject to heightened scrutiny under the Equal Protection Clause’’ and could not be penalized for gender non-conformity. Although the case did not deal directly with Title VII, which governs private employers, the justices writing for the 11th Circuit frequently referenced Title VII in their decision.

In the Maryland case before the EEOC, the government contractor denied admission of any wrongdoing, but did agree, as part of Monday’s settlement, to re-publicize its nondiscrimination policies and conduct anti-discrimination and anti-harassment training specifically focusing on transgender and other LGBT issues at its facility. Due to the contractor’s cooperation, Freedom to Work and Lambda Legal decided not to publish the names of their client or the government contractor in question.

’’We applaud the EEOC for conducting such a thorough investigation and interviewing so many witnesses to the anti-transgender harassment,’’ Almeida said in a statement issued jointly by Freedom to Work and Lambda Legal. ’’This case shows that the EEOC takes very seriously its role in protecting LGBT Americans’ freedom to work.’’

’’Slowly but surely, we are gaining recognition of the rights of LGBT employees, but this case shows that employers and employees need laws that spell out gender identity and sexual orientation protections specifically, to help prevent discrimination in the first place,’’ said Greg Nevins, the supervising senior staff attorney at Lambda Legal’s Southern Regional Office in Atlanta.

Nevins also appealed for further movement from Washington.

’’We need action by the 113th Congress to pas the Employment Nondiscrimination Act (ENDA), and even more immediately, President Obama should sign the executive order banning LGBT discrimination by companies that profit from federal contracts,’’ Nevins continued. ’’That executive order should have broad support across the political spectrum, since federal dollars should neither fund discrimination nor go to employers whose personnel and productivity suffer because discrimination and harassment are tolerated.’’

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