Last week, President Obama signed an executive order banning discrimination against gay or transgender federal employees and contractors. On the same day, the first gender-neutral bathroom became available in the White House. The topic of transgender identity may be news to many. However, beyond the spotlight, transgender identity and the struggles surrounding transgender persons are real, particularly in the workplace.
On March 16, 2015, the United States Commission on Civil Rights held its first ever hearing on workplace discrimination against those in the LGBT community.
According to NPR, the EEOC has helped more than 1,200 lesbian, gay, bisexual and transgender (LGBT) persons bring employment discrimination claims under Title VII since 2013. Some employer defendants have tried to claim Title VII does not protect transgender persons, but both state and federal courts disagreed.
As transgender rights awareness continues to gain momentum, employers need to be prepared to deal with new issues related to gender identity, gender stereotyping, and gender transitioning.
Federal Protections for Transgender Individuals
In 2012, the EEOC issued a landmark decision in Macy v. Holder, which held that discrimination based on transgender status constituted unlawful sex discrimination under Title VII. In December 2014, the Department of Justice issued a memo recognizing that transgender people are protected under Title VII.
In a landmark ruling issued on April 1, 2015, the Equal Employment Opportunity Commission (EEOC) found that the Department of the Army discriminated against a transgender employee who transitioned from male to female, by barring her from using the same restroom as other female employees, and by her supervisors’ continued intentional use of male names and pronouns in referring to the employee after her transition. The EEOC also determined that some of the most common forms of harassment faced by transgender employees constitute unlawful discrimination under Title VII.
The EEOC also recently adopted a strategic enforcement plan for Fiscal Years 2013-16, which specifically addresses “Emerging and Developing Issues,” such as protections for LGBT individuals under Title VII of the 1964 Civil Rights Act. One EEOC initiative under the plan includes forming an LGBT work group to advise EEOC litigators, coordinate internal policies and comment on pending legislation. Another initiative has EEOC litigators filing amicus curiae briefs in lawsuits around the country – briefs filed by someone not a party to the litigation, but who have an interest (usually a social concern) in the outcome.
California Protections for Transgender Individuals
The California Fair Employment and Housing Act (FEHA) makes it unlawful for an employer to refuse to hire or employ a person or to discharge a person from employment or to discriminate in compensation or in terms, conditions, or privileges of employment because of the person’s gender identity. California Government Code sections 12940(a) and 12926(p).
Last year, the California Department of Fair Employment and Housing (“DFEH”), brought a lawsuit against a California employer alleging it was sex, gender, gender identity and gender expression discrimination to require a transgender employee to use the female locker room and restroom facilities until the employee’s gender transition to male was “complete” after sex reassignment surgery.
The FEHA broadly protects not only gender identity, but also gender expression (regardless of whether an employee self-identifies as a transgender individual). The expanding gender-identity protections safeguard employees who wish to dress like, act like and use the restroom of the gender they identify with, even if they never undergo surgery to alter their appearance. Employees’ gender identity and gender expression (including presenting in a way that does not comport with traditional gender roles) should not be a basis to treat employees differently.
Failing to properly deal with issues of gender identity and gender expression may lead to employee claims. To help ensure a workplace free from discrimination and harassment for all employees:
- Make tolerance part of the workplace culture by having strong anti-discrimination provisions in personnel policies and awareness of gender identity in proactive diversity training.
- Ensure employees know harassment and discrimination will not be tolerated based on sex, gender, sexual orientation, gender identity and/or gender expression.
- Employees should be addressed by their names or preferred title by all persons in the workplace.
- Implement reasonable workplace appearance, grooming, and dress standards that allow employees to appear or dress consistently with their gender identity.
- Consider assigning a gender-neutral restroom or locker room to accommodate ALL employees, whether male, female or transitioning.
- Ensure the privacy of gender-transitioning employees.
- If an employee requests help as he or she undergoes a gender transition, engage in a dialogue and ask the employee to share any concerns. Then, figure what accommodations are best and/or possible. A change in wardrobe could occur overnight, but a transition involving hormones and surgery might take several years to complete.
Although employers and HR staff may be aware employees are protected against discrimination based on gender, gender identity and gender expression under California and Federal law, transgender discrimination or harassment claims may arise from others employed in the workplace.
To help prevent such claims, employers should educate their workforce not only through policies and procedures, but also through training. If this means having employees participate in diversity training, then employers should consider making that investment.
Reprint and Written by Hannah Sweiss on behalf of Lewitt, Hackman, Shapiro, Marshall & Harlan – A Law Corporation