The Equal Employment Opportunity Commission (EEOC) issued its Performance and Accountability Report for Fiscal Year 2017, which saw the lowest number of workplace discrimination charges, i.e., 84,254 charges filed with the agency since FY 2007. Retaliation comprised the majority (48.8%) of charges followed by race, disability and sex discrimination. The least amount of charges were based on genetic information, which comprised only .2% of the total charges filed. Reasonable cause determinations (i.e., determinations that reasonable cause exists to believe that a violation of law occurred) were made in only 2,909 cases comprising less than 3% of the total charges filed with the agency. In Florida, 6,858 workplace discrimination charges were filed comprising 8.1% of the total charges filed nationwide. Of the Florida charges filed, retaliation comprised the largest percentage (50.8%).
The EEOC filed 201 lawsuits in FY 2017 and secured $484 million for victims of discrimination through mediation, conciliation, settlements and litigation. The majority of lawsuits filed by the EEOC were filed under Title VII of the Civil Rights Act, followed by the Americans with Disabilities Act. The EEOC secured $42.4 million for alleged victims of discrimination through its litigation efforts.
The EEOC’s substantive priorities for FYs 2017-2012 are: (1) eliminating barriers in recruitment and hiring; (2) protecting vulnerable workers, including immigrant and migrant workers, and underserved communities from discrimination; (3) addressing selected emerging and developing issues; (4) ensuring equal pay protections for all workers; (5) preserving access to the legal system; and (6) preventing systemic harassment. Under the emerging and developing issues priority, the EEOC will continue its focus on, among other things, “issues related to complex employment relationships and structures in the 21st century workplace, focusing specifically on temporary workers, staffing agencies, independent contractor relationships, and the on-demand economy” as well as “backlash discrimination” against those who are, or are perceived to be, of Muslim, Sikh, Arab, Middle Eastern or South Asian descent.
Victory for transgender funeral director
Recently, the U.S. Sixth Circuit Court of Appeals concluded that a funeral home violated Title VII of the Civil Rights Act, which prohibits, among other things, discrimination based on sex, by firing an employee after she announced that she would begin transitioning from a male to female. The funeral home is owned by a Christian man who testified that he holds a sincere belief that allowing one of the funeral home’s employees to deny their sex while acting as a representative of the company would violate “G-d’s commands.” A mission is included in the funeral home’s website, which identifies its “highest priority” as “honor[ing] G_d in all that we do as a company and as individuals.” According to the discharged employee, the reason given by management for terminating her employment was that the public would not accept her transition.
Concluding that the EEOC could not sue for discrimination based solely on the employee’s transgender and/or transitioning status, the lower court nonetheless found that the EEOC stated a claim for discrimination in violation of Title VII based on the employee’s failure to conform to the funeral home’s sex based preferences, expectations or stereotypes. The Sixth Court overturned the lower court’s decision in part, and expressly held that discrimination on the basis of transgender and transitioning status alone violates Title VII. Additionally, the Sixth Circuit overturned the lower court’s holding that the Religious Freedom Restoration Act (RFRA) precluded the EEOC’s suit against the funeral home. Under the RFRA, the government is prohibited from “substantially burden[ing] a person’s exercise of religion even if the burden results from a rule of general applicability,” unless the government “demonstrates that application of the burden to the person: (1) is in furtherance of a compelling governmental interest; and (2) is the least restrictive means of furthering that compelling governmental interest.” In rejecting the funeral home’s RFRA defense, the Sixth Circuit concluded as a matter of law that a religious claimant cannot rely on the presumed biases of customers to establish a substantial burden under the RFRA and that tolerating an employee’s understanding of her sex and gender identity is not tantamount to supporting it.
The Sixth Circuit case is instructive based on its express holding that discrimination based on an individual’s transgender and/or transitioning status is prohibited under Title VII in addition to sexual stereotyping based on an individual’s gender identity. Gender identity claims under Title VII are actionable in the Eleventh Circuit, which covers Florida.