Important Ruling on Transgender Issues in the Workplace

05/05/2012

Finding protection from discrimination under the law is no simple matter for transgender individuals in the workplace. Simply put, the term ‘transgender’ describes the state of one’s gender identity (self-identification as woman or man) that does not match one’s assigned sex. In a broader sense, ‘transgender’ is a general term applied to a variety of individuals, behaviors, and groups with tendencies to vary from culturally conventional gender roles. These individuals often experience discrimination in the workplace, in some cases, losing job opportunities or promotions due to their transgender status. Title VII of the Civil Rights Act provides protections against sex discrimination; however, transgender issues do not fall neatly into this category. Indeed, being transgender is not yet an independent protected status under federal law. Thus, in order to find protections under the law, transgender individuals need to file their claims as sex discrimination using different formulations.

There is evidence, however, that the courts are starting to acknowledge and validate legal issues pertaining to transgender individuals. In fact, in April 2012, the Equal Employment Opportunity Commission (EEOC) determined in the case of Macy v. Bureau of Alcohol, Tobacco, Firearms and Explosives that, “claims of discrimination based on transgender status and gender identity are cognizable as claim of sex discrimination” under Title VII of the Civil Rights Act. The EEOC found support for this position in a 1989 Supreme Court case that ruled against “sex stereotyping” a term used to describe discrimination against someone when they “fail to act and appear according to expectations defined by gender” whether or not that individual is transgender. Currently an amendment to the Employment Non-Discrimination Act is being considered that would add “sexual orientation” and/or “gender identity” as specific protected categories.

The EEOC’s emerging support for equal treatment of transgender individuals will likely have a significant impact on employers and employees. With protection for transgender individuals under Title VII, there will undoubtedly be an increase in the number of filed complaints based on gender identity and expression. It is guaranteed that the EEOC is going to be aggressive in their investigations and corrective actions so as to deter discrimination of this kind in the workforce. As a result, employers need to be aware of this and take steps toward eliminating the possibility of discrimination when interviewing, hiring, and promoting, disciplining or terminating employees. Educational programs and appropriate policies should be in place to ensure the equal treatment of all employees. Not only will this generate a positive work environment for all, but it will also serve to minimize an employer’s legal liability.

Lawyers at Seyfarth and Shaw suggest the following best practices for addressing transgender Issues in the workplace:

  • Amend non-discrimination policies to include gender identity and expression as protected categories
  • Conduct training and incorporate transgender issues in all harassment training programs to foster respect, sensitivity and understanding from other employees at all levels
  • Create dress codes that are gender neutral, not specifying appropriateness for male and female
  • Ensure that the use of pronouns orally and in writing is consistent with an employee’s gender presentation
  • Access to restrooms should be based on an employee’s gender presentation, a unisex bathroom may be appropriate for a temporary time period
  • Guidelines for an employee’s gender transition should be an interactive process with an established Human Resources liaison, if possible
  • Maintain privacy and confidentiality of the employee even if their personal circumstances and transition may be public knowledge
  • Personnel records should be updated and changed to reflect an employee’s gender presentation, but notes can be made that reflect name and gender at birth

The EEOC ruling serves as an important reminder that gender identity and expression in the workplace must be protected from discrimination by employers to the best of their ability. Each employer should adhere to the best practices listed above and consistently raise awareness about transgender issues to ensure that they are handled in a manner consistent with the privacy and sensitivity due to all employees in the company.