Further Developments in Transgender Discrimination Under Title VII

Earlier this month, the federal district court for the Western District of Kentucky declined to dismiss a sex discrimination lawsuit against defendant General Electric Appliances (GE) brought by a transgender former employee under a theory of impermissible sex stereotyping. Mickens v. General Electric (W.D. Ky. 2016).

Mykel Mickens, an African American transgender man, was employed by General Electric Appliances (GE) from October 2014 to June 2016. Mickens was discharged on June 27, allegedly for attendance issues. In response to his discharge, Mickens brought harassment and disparate-treatment claims under both Title VII and the Kentucky Civil Rights Act (KCRA), based on his status as a transgender black man not conforming to gender stereotypes. GE filed a motion to dismiss, arguing that neither Title VII nor the KCRA supported a claim of discrimination on the basis of transgender status. The district court disagreed, holding that in Smith v. City of Salem (6th Cir. 2004), the Sixth Circuit Court of Appeals recognized a prohibition against gender discrimination for failure to conform to sex stereotypes, and that as a transgender individual, Mickens could bring a claim under that theory of sex discrimination. The court noted that both the Sixth Circuit and the United States Supreme Court are poised to address transgender issues in the context of Title IX litigation. Although Plaintiff’s case involves Title VII violations, the court reasoned that the Title IX cases may have implications for employers in the context of Title VII.

Earlier this year, another district court within the Sixth Circuit held that a transgender plaintiff’s sex discrimination claim based on impermissible sex stereotyping failed based on the employer’s entitlement to exemption under the Religious Freedom Restoration Act of 1993. EEOC v. R.G. & G.R. Harris Funeral Homes, Inc. (E.D. Mich. 2016). MSEC will continue to monitor this issue and advise its members on best practices.