Nevertheless, employers in all jurisdictions should be mindful that the United States Equal Employment Opportunity Commission, the federal agency charged with enforcing Title VII, already has interpreted sex discrimination to include discrimination on the basis of sexual orientation and gender identity. (See Macy v. Dept. of Justice (EEOC 2012); Lusardi v. Dep’t of Army (EEOC 2015).) As set forth in its Strategic Enforcement Plan for Fiscal Years 2017-2021, the EEOC will continue to prioritize the litigation of claims on behalf of the LGBT community.

Lipnic joined the Commissioners in the EEOC landmark decision Macy v. Holder, which found that discrimination based on a person’s gender identity may establish a case of gender discrimination (Macy v. Holder, 2012). (For more on this decision, see our article, Title VII Prohibits Discrimination against Transgender Workers, EEOC Decides.) Although she did not join the majority in Lusardi v. Dep’t of the Army (2015) (where the Commission found continuous misgendering of a transgender female employee and denial of access to a restroom consistent with the employee’s gender identity sufficiently constituted a hostile work environment based on sex), Lipnic appeared to support the inclusion of harassment based on gender identity in the EEOC Proposed Enforcement Guidance.In addition to the five members of the Commission, Trump may appoint the EEOC’s General Counsel, a position that is open. Such an appointment also is subject to approval by the U.S. Senate.Please contact your Jackson Lewis attorney if you have any questions.

In the last several years, following the momentum built by federal courts upholding transgender rights under Title VII (e,g., Smith v. City of Salem (6th Cir. 2004), Schroer v. Billington (D.C. Cir. 2008), and Glenn v. Brumby (11th Cir. 2011)), the EEOC has interpreted the prohibition against sex discrimination under Title VII of the Civil Rights Act of 1964 as providing protection to lesbian, gay, bisexual, and transgender people, even though there is no explicit language extending the protections to gay and transgender rights. (See Macy v. Dept. of Justice (EEOC 2012), Lusardi v. Dep’t of Army (EEOC 2015)). Applying that interpretation, the EEOC has filed lawsuits against a number of employers for sexual orientation or gender identity discrimination.