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By Human Rights Campaign Based on TLDEF’s Anti-Discrimination Cases

Based on two successful proceedings brought by the Transgender Legal Defense and Education Fund before the U.S. Equal Employment Opportunity Commission (EEOC), Walmart’s Corporate Equality Index (CEI) rating has been suspended by the Human Rights Campaign (HRC).

The CEI is a rating of LGBT equality at corporations doing business in the U.S., including the Fortune 500, the AmLaw 200 top law firms, and hundreds of publicly and privately held mid- to large-sized businesses. It is issued by HRC, the country’s largest LGBT advocacy organization.

The CEI is often credited with helping make US companies more LGBT-friendly. This year, a record-breaking 609 employers earned perfect 100 percent scores. The number of employers offering transgender-inclusive healthcare coverage rose from 647 last year to 750 this year, including 58 percent of the Fortune 500-ranked businesses.

TLDEF applauds this increase in the number of companies that value trans and LGBT equality.

One concern voiced by TLDEF and others is that good corporate policy must be matched by a commitment to enforcement. Sometimes, as with Walmart, the corporate policy does not necessarily reach to the shop floor, leaving transgender and other LGBT employees vulnerable to severe and pervasive harassment and discrimination.

In regard to Walmart, the 2018 CEI listed the company’s name with an asterisk, and a footnote stating that Walmart’s Corporate Equality Index rating has been suspended:

“During the CEI survey cycle, two Equal Employment Opportunity Commission determinations were made public in the cases of Jessica Robison (EEOC Charge Number 511-2015-01402) and Charlene Bost (EEOC Charge Number 430-2014-01900). These determinations pointed to significant enforcement gaps in Wal-Mart’s non-discrimination policy, specifically with regards to sex and gender identity. Pending remedial steps by the company, the CEI rating is suspended.”

Today’s action by HRC with regard to Walmart communicates the important lesson that even corporations with strong LGBT equality policies must have equally strong enforcement mechanisms for their employees who report harassment and discrimination.

TLDEF brought the two successful proceedings to the EEOC against Sam’s Club, a membership-only retail warehouse chain and a subsidiary of Walmart,. In the first proceeding,

Ms. Jessica Shyne Robison, a longtime employee of Sam’s Club stores in Florida, was rewarded with several promotions, but was “subjected to harassment and intimidation” by a supervisor in 2014 at a Sam’s Club store in Tampa after she began her gender transition.

After filing a complaint, Ms. Robison was disciplined and demoted. In its ruling in her favor, the EEOC stated “… there is reasonable cause to believe that [Sam’s Club] discriminated against [Ms. Robison] due to her transgender status/gender identity and retaliated against [her]…” The Commission also found reasonable cause to believe that Walmart’s health care policy then in effect, excluding coverage of medically necessary transgender health care, violated the law.

In the second proceeding, Ms. Charlene Bost endured employment discrimination at a Sam’s Club store in Kannapolis, North Carolina in her position as a Member Service Supervisor. The EEOC found sufficient evidence to establish reasonable cause to believe that Ms. Bost was subjected to discrimination and a hostile work environment because of her sex for a number of years until her retaliatory firing in 2015, and that this discrimination and retaliatory discharge violated Title VII of the Civil Rights Act of 1964.

The two cases will now be moving to litigation in federal court.

“We hope this will encourage companies to examine the enforcement mechanisms for their good corporate policies,” said TLDEF Executive Director Jillian Weiss.

“Human Resources managers must be trained in proper investigation techniques, and understand how to be objective in determining when harassment and discrimination has occurred. Too often, corporate HR employees give their employer too much leeway, leaving transgender employees to suffer further harassment, discrimination and retaliation.

It is sad and intolerable that both Ms. Robison and Ms. Bost have had to suffer the effects of severe and pervasive harassment and discrimination at Walmart over a long period of time, despite putting the company on notice over and over again.

I am awed by their heroic endurance in the face of the destruction of their careers, the devastation to their lives, and the trauma of having to relive these experiences endlessly during lengthy legal processes.

750 major companies have strong corporate policies protecting transgender people, backed up by proper enforcement procedures. We hope this will deliver the message to Walmart and others that good corporate policy is not enough. It must be accompanied by strong enforcement mechanisms, or it is mere window dressing. TLDEF will continue to bring suits on behalf of transgender people who experience discrimination in employment, education, health care access and public accommodations.”