Title VII and related civil rights laws by their terms do not make sexual orientation or gender identity protected categories.  However, a number of recent suits have attempted to use Title VII’s prohibition against gender discrimination to bootstrap claims involving gay and transgender issues.  Last month, the Tenth Circuit Court of Appeals rejected a claim by a transsexual employee that she was terminated based on illegal gender stereotyping.

The case, Etsitty v. Utah Transit Authority, was filed by a bus driver who had begun the process of changing her gender from male to female.  Although she was still pre-operative, the employee began dressing as a woman and using the women’s restroom at work.  The employer terminated her over concerns regarding bathroom use, but offered to rehire her after surgery had been completed.

The terminated employee sued under Title VII, alleging that she was fired due to illegal gender stereotyping.  A number of federal courts have allowed sex discrimination claims based upon the victim’s failure to adhere to societal expectations regarding gender and gender-based behavior.  She alleged that the employer’s treatment of her and its concerns over bathroom use were based upon an impermissible stereotype regarding male-female gender roles.

The Tenth Circuit affirmed summary judgment for the defendant.  The court concluded that the termination was based not upon gender stereotyping, but due to legitimate concerns over privacy and propriety.  Use of a restroom proscribed for another gender is not a protected refusal to conform to gender stereotypes.

Transgender status is a protected category under a number of state and municipal antidiscrimination laws and ordinances.  In practice, many employers work with pre-operative transsexuals to accommodate issues that arise during the transition period.