The anti-discrimination complications of North Carolina’s HB 2 are many, but probably one of the lesser known ones is that HB 2, which limits transgender people’s use of restrooms in state buildings to the gender listed on their birth certificates, is in direct conflict with the Equal Employment Opportunity Commission (EEOC) interpretation of Title VII. The EEOC ruled in EEOC v. Deluxe Financial Services Corp. that “Deluxe refused to let [Britney Austin] use the women’s restroom in violation of Title VII,” EEOC’s position is “such alleged conduct violates Title VII of the Civil Rights Act of 1964, which prohibits sex discrimination, including that based on transgender status and gender stereotyping.”
Deluxe Financial Services Corp. settled with EEOC.
What this means is that if a transgender employee is not allowed to use the bathroom of their gender identity in their workplace, the EEOC has acted on what they see as an employer breaking federal law.
If state law is in conflict with federal law, the Supremacy Clause of the U.S. Constitution comes into play. Cornell University Law School describes the Supremacy Clause this way: “Article VI, Paragraph 2 of the Constitution is commonly referred to as the Supremacy Clause. It establishes that the federal constitution and federal law generally, take precedence over state laws, and even state constitutions.”
I wanted to clarify this with the EEOC, so I contacted EEOC Commissioner Chai Feldblum. I wanted to know what will happen if a transgender employee files a complaint with the EEOC. I also wanted to know what an employer of a transgender person who files a claim with EEOC could expect to happen.
In a written response, Commissioner Feldblum stated, “Transgender employees who believe they have been discriminated against by their employer may file a charge of employment discrimination at an EEOC office closest to where they live, or at any one of the EEOC’s 53 field offices. They also may begin this process by calling us at 1-800-669-4000, or completing an on-line assessment to send to one of our offices. The charge will ordinarily be investigated at an EEOC office closest to where the discrimination occurred.”
As for the employer, she responded that an investigation is done, and “If there is no settlement during the investigation, and EEOC determines based on the investigation that there is reason to believe that discrimination has occurred, the Commission issues a ‘Letter of Determination’ to the charging party and the employer setting forth its determination. This then moves the process to what is called ‘conciliation.’ This is a more formal effort to achieve a voluntary settlement with the employer to stop the discrimination and get relief for the charging party (and often for other parties who have been discriminated against in a similar manner.)
“If a voluntary settlement is not reached on terms acceptable to the Commission,” she added, “the charge is referred to our lawyers who will decide whether the Commission should file a lawsuit. Given the Commission’s resources, we file a small number of lawsuits each year. For that reason, the Commission is committed to trying to achieve settlements prior to going to court,” adding the EEOC gives a charger a Notice-of-Right-to-Sue to chargers with their own attorney when the EEOC itself doesn’t sue.
Citing Lusardi v. Dep’t of the Army, Feldblum stated, “The Commission’s position that gender identity is protected under Title VII is equally applicable to applicants and employees who believe they have been discriminated against by private sector employers or state and local governments.”
Feldblum also notably stated, “The Commission has filed lawsuits to address a number of forms of employment discrimination related to LGBT status,” and “Contrary state or local laws provide no defense to an employer that violates Title VII.”
Maybe I’m wrong, but it appears to me that the EEOC is preparing to address the conflict between state and federal law in North Carolina in court.
I don’t think I’m wrong.
i wish to thank the commissioner and the commission for their ruling in a hard and long fought battle. I am honored and hope my case will continue to help others!
I hope so too, Tamara.