Fired for being transgender: The fight for LGBTQ workers' rights

LGBTQ employees across the country are facing discrimination and harassment in the workplace. One case currently before the Supreme Court could heighten protections for LGBTQ people in the workforce

Posted: Jun 15, 2019 11:40 AM
Updated: Jun 15, 2019 11:40 AM

It took Aimee Stephens several months to write a letter to her boss explaining that she was a transgender woman and planned to start coming to work as her true self.

She had been working as a funeral director and embalmer for RG & GR Harris Funeral Homes in Garden City, Michigan, for almost six years. She loved her job, but didn't want to hide who she was anymore.

She agonized over what to say in the letter, wrote several drafts and sought input from her therapist. Finally satisfied, she handed the letter to her boss in the summer of 2013.

"He read it, he folded it up and put it in his pocket," Stephens recalled in an interview with CNN. "And basically stood up and walked away."

She was fired two weeks later.

Stephens filed a complaint with the Equal Employment Opportunity Commission, which then sued the funeral home claiming that firing Stephens for being transgender was unlawful sex discrimination based on her employer's sex- or gender-based expectations.

"I was proposing to go from being a man in a suit to a woman in a dress and they couldn't handle that part," Stephens said.

Her boss stated that he fired Stephens because she "was no longer going to represent himself as a man" and "wanted to dress as a woman," court papers show.

The funeral home had a dress code that required male funeral directors to wear pant suits and women to wear skirt suits.

According to court documents, her boss believed that authorizing Stephens to wear the uniform for female funeral directors would make him complicit "in supporting the idea that sex is a changeable social construct rather than an immutable God-given gift."

"The goal is to help family and friends of deceased to get through the grieving process," said John Bursch, senior counsel and vice president of Appellate Advocacy at the Alliance Defending Freedom, a conservative religious group representing the funeral home.

The company also worried Stephens' transition would distract customers. "If a funeral home employee looks one way one day and a different way another day, when the family comes in later, that is taking the focus off the grief and onto the funeral home," said Bursch.

The Sixth Circuit Court ruled in favor of Stephens in March 2018, saying that the funeral home engaged in unlawful discrimination against her on the basis of her sex in violation of Title VII of the Civil Rights Act of 1964.

The funeral home has since appealed the ruling and the Supreme Court is set to hear the case later this year.

The funeral home said it appealed the decision because it claims it is being punished for a change in federal law that it could not have anticipated. "Businesses should be able to rely on the meaning of laws as they are written, not subjected to the whims of a court imposing its policy preferences after the fact," said Bursch.

LGBTQ workers in limbo

By agreeing to hear Stephens' case, in addition to two others this fall, the Supreme Court is set to determine whether sexual orientation and gender identification are considered protected classes under Title VII of the 1964 Civil Rights Act.

That law prohibits employers from discriminating against employees on the basis of race, color, sex, religion and national origin.

But lower courts have been split on whether the law bans discrimination based on sexual orientation or gender identification.

Under the Obama Administration, Attorney General Eric Holder interpreted that Title VII prohibited employment discrimination based on an individual's gender identity, including transgender status.

In 2017, Jeff Sessions, the Trump Administration's former Attorney General, upended that guidance and said the act doesn't protect transgender workers from employment discrimination.

The EEOC is the government agency in charge of enforcing federal workplace discrimination laws. Its website currently states that it: "interprets and enforces Title VII's prohibition of sex discrimination as forbidding any employment discrimination based on gender identity or sexual orientation. These protections apply regardless of any contrary state or local laws."

The president appoints the members of the EEOC, which currently has three openings, including the general counsel position.

Currently, 21 states and the District of Columbia prohibit discrimination based on sexual orientation and gender identity, according to the Human Rights Campaign. Companies have also stepped up protections: 85% of the Fortune 500 have gender identity included in their nondiscrimination policies. In 2002, that number was just 3%, the HRC found.

The patchwork of legal protections can leave some workers feeling like they're in limbo and sometimes fearful of representing their true selves in the workplace.

A 2018 HRC report found that nearly half of LGBTQ workers aren't out at work.

"People are at real risk of employment discrimination when there aren't clear laws in place," said Sarah Warbelow, legal director at the HRC in Washington, DC.

Having to hide who you are can take a major psychological toll, she added.

For Stephens, it was nearly fatal. One fall night in 2012 she says she walked outside her home and put a gun to her chest. "I stood there with it pressed into my chest for nearly an hour," she tearfully recalled. "But I couldn't bring myself to pull the trigger. I realized I liked me too much."

That's when she decided to write the letter.

'They make somebody's life absolutely miserable'

Fear of being discriminated against or being treated unequally prevents many LGBTQ people from coming out at work, according to Warbelow. The HRC report also found that 53% of LGBTQ workers have heard jokes about gay or lesbian people at least once in a while at work.

"You can imagine that just drives people to be more closeted," said Warbelow.

Workplace harassment and discrimination can come in many forms. Sometimes it comes in the form of blatantly offensive comments, but more subtle actions by managers and coworkers can also stall career growth.

"When it comes to those bad apples, unfortunately they can be very creative in how they make somebody's life absolutely miserable in the workplace," said Warbelow.

Workplace harassment and discrimination for being gay is a scenario Scott Phillips-Gartner says he experienced firsthand.

He'd served in the Norfolk, Virginia, fire department for nearly three decades. After starting as a 911 dispatcher, he worked his way up to become an assistant fire marshal and a senior member of the city's bomb squad.

"I love my job. Up to the end. I loved it. I've loved going to work. I was always excited and there was always something there for me," Gartner told CNN.

But he says things started to change when he got married in 2014 and added his husband's name to his personnel records.

After filling out the paperwork and providing a marriage certificate, Gartner alleges his supervisors at the fire department started to treat him differently.

Up until then, only a few close coworkers knew Gartner was gay. In a lawsuit filed against the city of Norfolk in 2018, Gartner claims that throughout 2015 he was routinely subjected to verbal attacks, citing one example of a supervisor asking, "Where is Ms. Gartner?" in a staff meeting. The city denied these claims, according to court documents.

He is suing the city for creating a hostile work environment, gender discrimination and retaliation.

"The offensive conduct of Norfolk was severe and pervasive enough to cause Gartner to suffer humiliation and stress at work, as well as psychological harm that interfered with his job performance," according to the lawsuit.

Gartner filed complaints about the alleged discrimination to the city and the EEOC. Then, he said, the harassment, discrimination and retaliatory conduct got worse.

According to the lawsuit, he was denied training and the ability to maintain work certifications that caused him to lose pay and benefits after he filed the EEOC complaint. The city denied these allegations, court documents show.

After Gartner filed the complaints, the city's human resources department investigated, but found insufficient evidence of violations to the city's anti-discrimination, retaliation or harassment policies. Gartner received a letter dated March 6, 2017 saying his claims were found to be unsubstantiated.

He then received a notice from the fire chief dated the same day. It stated that Gartner was under investigation and being removed from serving as a law enforcement officer for Norfolk Fire-Rescue and reassigned to a temporary facility miles from his usual office.

"There was nothing for me to do. So, I paced the floors."

According to Barry Montgomery, Gartner's attorney, the fire department claims the investigation was prompted by the improper acquisition of a service dog. As part of his duties, Gartner was a bomb dog handler and trainer.

Gartner denies any wrongdoing.

An attorney for the city of Norfolk declined to comment about ongoing litigation. The city's spokesperson declined to comment citing the pending lawsuit.

Toward the end of 2017, Gartner said he was given a heads up that he was going to be fired, so he decided to retire early.

"He was basically forced out," said Montgomery.

Leaving the department earlier than Gartner had expected had financial consequences.

"He was with the city for a long time. If he would have gone ahead and worked...until he was 63, his retirement would have been a lot higher," said Montgomery.

After leaving the fire department, Gartner was able to find work as a fire consultant in the private sector.

'An equal playing field for everyone'

Some lawmakers have been trying for years to pass the Equality Act, which would expand federal discrimination protections for LGBTQ workers.

The bill would prohibit discrimination based on sex, sexual orientation, and gender identity in a variety of areas, including education, federal funding, employment, housing and other public facilities.

The Democrat-controlled House of Representatives passed the legislation in May, largely across party lines. The bill is unlikely to get passed through the Republican-controlled Senate.

For now, the existing patchwork of state laws has forced some LGBTQ workers to leave states and cities that don't have clear discrimination protections, according to Warbelow.

"Nobody should be forced to move from the place that they love just to make sure that they have the opportunity to work," said HRC's Warbelow.

"The Equality Act is about creating an equal playing field for everyone, no matter who you are, you should have the ability to earn a living and put a roof over your family's head."

Editor's Note: If you or someone you know might be at risk of suicide, here are ways to help.

Mississippi Coronavirus Cases

Data is updated nightly.

Cases: 319948

Reported Deaths: 7371
CountyCasesDeaths
DeSoto22285267
Hinds20719421
Harrison18431317
Rankin13901282
Jackson13718248
Madison10263224
Lee10059176
Jones8467167
Forrest7832153
Lauderdale7261242
Lowndes6517150
Lamar635188
Lafayette6313121
Washington5425137
Bolivar4841133
Panola4670110
Oktibbeha466198
Pearl River4605147
Marshall4574105
Warren4440121
Pontotoc425873
Monroe4157135
Union415777
Neshoba4063179
Lincoln4008112
Hancock386987
Leflore3515125
Tate342486
Sunflower339491
Pike3371111
Alcorn327272
Scott320374
Yazoo314171
Adams308086
Itawamba305178
Copiah299966
Coahoma298784
Simpson298589
Tippah291968
Prentiss284161
Leake272074
Marion271280
Covington267283
Wayne264642
Grenada264087
George252251
Newton248663
Tishomingo231868
Winston230181
Jasper222148
Attala215073
Chickasaw210559
Holmes190474
Stone188433
Clay187954
Tallahatchie180041
Clarke178980
Calhoun174132
Yalobusha167840
Smith164134
Walthall135347
Greene131834
Lawrence131124
Montgomery128643
Noxubee128034
Perry127238
Amite126242
Carroll122330
Webster115032
Jefferson Davis108234
Tunica108127
Claiborne103130
Benton102325
Humphreys97533
Kemper96629
Franklin85023
Quitman82216
Choctaw79118
Wilkinson69632
Jefferson66228
Sharkey50917
Issaquena1696
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Alabama Coronavirus Cases

Cases: 548657

Reported Deaths: 11306
CountyCasesDeaths
Jefferson810031566
Mobile42105831
Madison35690525
Tuscaloosa26173458
Shelby25607254
Montgomery25081614
Baldwin21868314
Lee16278176
Calhoun14719327
Morgan14629285
Etowah14175364
Marshall12453230
Houston10781287
Elmore10293214
Limestone10179157
St. Clair10162251
Cullman9952201
Lauderdale9603250
DeKalb8972190
Talladega8460184
Walker7338280
Autauga7241113
Blount6945139
Jackson6932113
Colbert6413140
Coffee5635127
Dale4928116
Russell454841
Chilton4476116
Franklin431382
Covington4275122
Tallapoosa4138155
Escambia401680
Chambers3728124
Dallas3607158
Clarke353061
Marion3240107
Pike314378
Lawrence3133100
Winston283472
Bibb268564
Geneva257981
Marengo250565
Pickens236962
Barbour234559
Hale227278
Butler224271
Fayette218862
Henry194543
Randolph187544
Cherokee187345
Monroe180041
Washington170539
Macon163051
Clay160059
Crenshaw155957
Cleburne153444
Lamar146837
Lowndes142254
Wilcox126930
Bullock124342
Conecuh113630
Coosa111729
Perry108626
Sumter105732
Greene93634
Choctaw62125
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