WAUSAU, Wis. (Legal Newsline) – Federal agencies seem to be at odds as to whether a transgender person can be discriminated against under federal law.
Recently, the U.S. Equal Employment Opportunity Commission (EEOC) filed a lawsuit against a Colorado-based auto retailer for not hiring a transgender candidate. Meanwhile, Donald Trump's Department of Justice, under Attorney General Jeff Sessions, told his staff attorneys in an Oct. 4 letter that Title VII of the Civil Rights Act does not apply to transgender persons.
"It is obvious that there are different tensions arising based upon different federal agencies’ view of the scope of federal law and protections afforded to individual employees from discrimination," says Ruder Ware attorney Dean Dietrich, of Wasau, Wis.
"This is likely to be a topic that will be debated both in the court of public opinion as well as the court of law."
The lawsuit was filed Sept. 29 and alleges male candidate Egan Woodward was offered a managerial job at the A&E Tire in Denver, contingent on authorization he had no drug or criminal history.
However, the job offer was withdrawn after the retailer found out he was born a female, it is alleged.
“In completing the application and paperwork, Woodward identified his assigned sex at birth and indicated he used another name typically associated with the female sex in the past,” according to the EEOC press release.
“Less than an hour after A&E Tire extended Woodward a job offer, he received a call from a manager asking him if there were a mistake in his paperwork. When Woodward stated there was not, A&E never got back to him about completing the screenings or a start date and ultimately hired someone else for the position.”
The complaint begins by making a claim for violation of Title VII of the Civil Rights Act and was filed only a week before Sessions' memo.
"This is an action under Title VII of the Civil Rights Act of 1964... and Title I of the Civil Rights Act of 1991... to correct unlawful employment practices on the basis of sex, and to provide appropriate relief to Egan Joseph Woodward, who was adversely affected by such practices," the complaint starts.
Dietrich, who has practiced employment law and labor relations for more than 35 years, spoke to Legal Newsline about the EEOC’s suit and apparent contradiction between the EEOC claims and Department of Justice (DOJ) sexual discrimination guidelines.
“The claims raised in the recent lawsuit allege that a company discriminated against an employee that was being hired for a position in the company based upon the decision to withdraw the offer of employment when it became clear that the employee was a transgender person,” said Dietrich, who has practiced employment and labor relations law for more than 35 years.
“The recent pronouncement by the DOJ was that an individual’s sexual preference for a particular gender identity was not considered a protected category under Title VII.
"Based upon that conclusion, there would be no basis for an employee to file a claim alleging discrimination under Title VII.”
The company has not yet filed its answer to the lawsuit. A scheduling conference is scheduled for Dec. 4 before U.S. Magistrate Judge Scott T. Varholak, of the District of Colorado.
Whether the case will set any precedent regarding transgender persons remains to be seen; however, its relevance certainly sets the stage in the future hiring of transgender employees, according to the attorney.
“There are certainly concerns regarding retaining good employees, while at the same time companies will not want to be subject to further lawsuits if there are not protections afforded by federal law,” Dietrich said.
“Each company needs to decide what remains the most important aspect of their employee resources and how they want to treat transgender employees in the workplace.”
In the end, the DOJ rules, he said.
"Ultimately, the DOJ represents the federal government," Dietrich said. "There may be a basis for the Department of Justice to enforce its position regarding the applicability of federal law.
"The conflict between the position of the EEOC and the position of the Department of Justice may be resolved through internal governance discussions or may be resolved as part of budget deliberations."
The counselor intends to follow the case.
“One possibility is the continued litigation and a court ruling that would declare whether or not a transgendered employee is considered protected under the federal law,” Dietrich said.
“Another option may be that the EEOC withdraws the lawsuit and decides not to pursue claims based upon transgender status.”