Federal laws protect current and prospective employees from discrimination and unfair treatment in the workplace. Those laws also prohibit employers from obtaining information that could be used for discriminatory purposes.
In one of the first lawsuits in the nation to allege discrimination against a transgender employee, a Michigan federal judge recently blocked an employer from gathering personal information about the worker’s transition from male to female.
The employee, who identified as a woman, had worked for R.G. & G.R. Harris Funeral Homes Inc. as a director/embalmer. In 2013, she told the Detroit-area funeral home that she was undergoing a transition from male to female and intended to dress like a woman. The funeral home fired her about two weeks later.
The Equal Employment Opportunity Commission stepped in and sued the funeral home on the employee’s behalf, arguing that the worker was let go because she is transgender and did not conform to the funeral home’s sex or gender based preferences.
During discovery, the funeral home wanted to get information on the prior and current status of the employee’s sexual anatomy, including copies of her birth certificate. It also sought information on the progress of her gender transition, including medical and psychological records, and her family background and relationships.
In response, the EEOC asked for a protective order, claiming the employee should not have to provide this kind of personal information.
As reported in Employment Law Daily, the court partially granted the motion for the protective order, ruling the funeral home was not entitled to certain private information about the employee. According to the judge’s opinion, information on anatomy, family background and relationships, and any medical or psychological records related to the progress of a gender transition “is of the most intimate and private nature, and it would be harassing and oppressive to require its disclosure, at least at this juncture, where the requesting party has failed to show its relevance to the disposition of the gender-stereotyping claim.”
Requests pertaining to sexual anatomy and family background, as well as medical or psychological records, were irrelevant because they did not show how supervisors actually perceived the worker before she was fired, the judge said.
The judge also refuted the funeral home’s argument that establishing the employee’s actual gender during her employment was pertinent. The funeral home had claimed that it could not have unlawfully fired the worker for acting like a woman if she was, indeed, a woman.
Tad T. Roumayah
Tad Roumayah focuses his practice primarily on employment litigation, representing employees who have encountered discrimination, retaliation, wrongful discharge, whistleblower protection claims, wage and hour violations and other employment issues and disputes.
