The U.S. Equal Employment Opportunity Commission (EEOC) has come to take the position that discrimination against transgender persons and discrimination against gay and lesbian  persons might be treated as sex discrimination under Title VII.
This position may allow some lgbt individuals, who have been fired largely because of their sexual orientation, to make an employment discrimination claim.  It may also mean more employers review their own policies and practices to minimize or eliminate lgbt employment discrimination.
This can make a difference.  As early as  1984 in a case in which I was suing a smaller south-western Michigan school district on behalf of a substitute teacher  I had used a sex discrimination claim and a host of others.  But in 1984 and 1985, the claim we first dropped, was the sex discrimination/employment discrimination claim.
In the case I represented a guy who had been let go because the school district thought he was HIV positive (he wasn’t) and/or because he was living with a person who was HIV positive. So I drew up a claim on several counts, including handicap discrimination, breach of contract, interference with contract, and sex discrimination–among others.
We gained more purchase and settled the case in my client’s favor with the handicap discrimination and breach of contract claims. (For those who may not know, a firing related to even the “perception” of a handicapping condition or disease in the employee is still improper on an employer’s part.)
At the time some other attorneys and I thought that had the district actually just fired my client because he was gay, they might have had an easier case.  And I believed there was probably anti-gay animus that prompted the firing–however, the board and school district defended their actions largely on the basis of an HIV scare. (Remember, again, we proved to them before trial that my client was not HIV positive, and that casual contact with a person with HIV was essentially without risk.)
Because the Michigan Elliott-Larsen (Michigan’s primary civil rights act) at the time hadn’t enumerated lgbt populations as protected (and still hasn’t) we thought the school district, if they had merely said “you’re fired because you are gay” might have had a stronger legal case.  Had the EEOC stance been clear back in 84/85, that claim we dropped would have remained a bargaining point in our settlement with the school district.
But if you think about it, at least one small part of sex discrimination can be seen as what I call “upset expectations” and expectations often built on stereotypes.  Women shouldn’t do this, guys shouldn’t do that, etc etc.
And so now, as thinking has evolved on this at the federal level, one wonders if the state will evolve too, even without specific mention of lgbt populations in the act.
From the EEOC’s own website is the following:
“In 2012, the EEOC held that discrimination against an individual because that person is transgender (also known as gender identity discrimination) is discrimination because of sex and therefore is prohibited under Title VII of the Civil Rights Act of 1964.  See Macy v. Department of Justice, EEOC Appeal No. 0120120821 (April 20, 2012).  The Commission has also found that discrimination against lesbian, gay, and bisexual individuals based on sex-stereotypes, such as the belief that men should only date women or that women should only marry men, is discrimination on the basis of sex under Title VII.  See Veretto v. United States Postal Service, EEOC DOC 0120110873 (July 1, 2011) (accepting Title VII sex discrimination claim alleging that supervisor harassment was  motivated by sexual stereotype that men should only marry women); Castello v. United States Postal Service, EEOC DOC 0520110649 (December 20, 2011)(accepting Title VII sex discrimination claim alleging that supervisor harassment was motivated by sexual stereotype that having relationships with men is an essential part of being a woman); Complainant v. Dep’t of Homeland Sec., EEOC DOC 0120110576 (August 20, 2014) (reaffirming prior findings that federal employees discriminated against on the basis of sexual orientation can establish violations of Title VII based on the sex stereotyping theory).
Consistent with case law from the Supreme Court and other courts, the Commission takes the position that discrimination against an individual because that person is transgender is a violation of Title VII’s prohibition of sex discrimination in employment.  Therefore, the EEOC’s district, field, area and local offices will accept and investigate charges from individuals who believe they have been discriminated against because of transgender status (or because of gender identity or a gender transition).
The Commission also takes the position, consistent with case law from the Supreme Court and other courts referenced at the previous link, that lesbian, gay, and bisexual individuals  may bring valid Title VII sex discrimination claims.  The Commission accepts and investigates charges alleging sexual-orientation discrimination, such as claims of sexual harassment or allegations that an adverse action was taken because of a person’s failure to conform to sex-stereotypes (described above)..”
It’s food for thought, and a step in the right direction regarding fairness for all.  Our chances at employment, and job promotion, as well as protection from discrimination or firing, should be based primarily on our ability and willingness to do the job, not our sexual orientation or religion or race or even a disability–if we can do the work.
Call us if you’d like to meet and learn more about this.  517 853-8015