What employers need to know about transgender discrimination

By Roberta B. Fields

Recent developments in the area of transgender rights should put employers on notice that government agencies are serious about eliminating this type of discrimination.

DOJ steps in to sue university

Typically the Equal Employment Opportunity Commission (EEOC) is the entity charged with enforcing federal employment laws. This past March, the Department of Justice (DOJ) filed a lawsuit in the Western District of Oklahoma alleging that Southeastern Oklahoma State University discriminated against a transgender professor. The lawsuit was brought by the DOJ as a result of a joint effort to enhance collaboration between the EEOC and the Justice Department’s Civil Rights Division for vigorous enforcement of Title VII.

This was not a totally new position by the DOJ. In December 2014, Attorney General Eric Holder announced that the Justice Department would take the position that Title VII’s prohibition against sex discrimination would cover claims based on gender identity, including transgender status. In the press release, Acting Assistant Attorney General Vanita Gupta of the Civil Rights Division said, “Discrimination against employees because of their gender identity, gender transition, or because they do not conform to stereotypical notions about how men and women should act or appear violates Title VII.”

The facts alleged in the complaint are as follows: Dr. Rachel Tudor began working as an assistant professor in 2004. When she was hired, she presented as a man. In 2007, consistent with her gender identity, she began to present as a woman. There was never a question about her work performance. In 2009, she applied to be a tenured associate professor. The department chair and other tenured faculty recommended her for the promotion, but the administration denied her application. The complaint alleges she was discriminated against because of her gender identity, gender transition and non-conformance with gender stereotypes.

EEOC takes strong stance against sex discrimination

Although the EEOC has only filed three lawsuits in the past year on behalf of transgender employees, expect that number to rise. The EEOC has taken the position since at least 2012 that Title VII prohibits discrimination on the basis of sexual orientation and gender identity. In 2012, the EEOC adopted the Strategic Enforcement Plan (SEP) listing as an enforcement priority for the years 2013-2016: coverage of lesbian, gay, bisexual and transgender individuals under Title VII’s sex discrimination provisions. Legal arguments for such protections go back to the Price Waterhouse v. Hopkins case of 1989. There, the Supreme Court recognized that employment discrimination based on sex stereotypes (e.g., assumptions and/or expectations about how persons of a certain sex should dress, behave, etc.) is unlawful sex discrimination under Title VII. Price Waterhouse denied Ann Hopkins a partnership, in part, because some partners at the firm felt she could act more “feminine.”

So although Title VII of the Civil Rights Act of 1964 does not explicitly include sexual orientation or gender identity in its list of protected categories, the EEOC interprets the statute’s sex discrimination provision as prohibiting discrimination against employees on the basis of sexual orientation and gender identity. Additionally, 19 states and the District of Columbia protect employees based on both sexual orientation and gender identity. Over 90 counties and municipalities, including New York City and San Francisco, protect transgender individuals from discrimination. For employers operating in more than one state, following the law can be challenging because many of the state laws are unique.

Best practices for employers

So, what should the wise employer do? First, have a policy prohibiting discrimination against transgender or transitioning employees. Include gender identity and sexual orientation as protected categories. Train human resource professionals how to respond to requests from employees, and train supervisors how to treat such employees. While transgender or transitioning employees should not be treated as having a disability for purposes of communication, training in the accommodation process may be helpful. Using the interactive process, transgender employees should be asked: What reasonable types of accommodations would they want? When can other employees be told, and what do you want them to know? What restroom will you want to use?

Be aware that in June 2015, the Occupational Safety and Health Administration (OSHA) published guidance for employers as best practices regarding restroom access for transgender workers. It provides that all employees should be permitted to use the facilities that correspond with their gender identity. Unisex private restrooms are permitted where they are available for other employees. You can’t single out transgender from other employees, and you can’t single out transgender employees with one unisex restroom. No matter what, keep the lines of communication open. Be sensitive, creative and keep the information confidential to the extent possible. You will be better equipped to deal with a situation if you are aware of it.