Transgender Issues in the Workplace

Issues involving transgender peoples’ rights are the subject of national headlines on a regular basis these days. Caitlyn Jenner’s story has resulted in a very active public dialogue about how our society treats transgender people.

Many people have expressed views that are repugnant to those in the LGBT community, and those who support LGBT rights. Narrow viewpoints such as these can affect transgender employees. 

Sexual Orientation Discrimination Violates Title VII

An air traffic controller filed a complaint with the U.S. Equal Employment Opportunity Commission claiming he had been denied a promotion based on his sexual orientation in violation of Title VII.

The EEOC initially found his claim did not implicate Title VII because Title VII does not directly address sexual orientation discrimination. In reviewing this part of the decision, the EEOC determined that Title VII does reach discrimination based on sexual orientation.

Though Title VII does not by its terms forbid discrimination based on sexual orientation, the EEOC nevertheless determined that discrimination based on sexual orientation could state a claim under Title VII. Relying on the U.S. Supreme Court’s decision in Price Waterhouse v. Hopkins, the EEOC noted that in Price Waterhouse, the Supreme Court held that discrimination based on gender stereotyping — i.e., failing to behave in a manner deemed consistent with employees’ gender expression — qualified as a form of sexual discrimination. 

The EEOC took the reasoning in Price Waterhouse one step further, finding that discrimination based on sexual orientation is effectively a form of gender stereotyping.  Unknown v. Anthony Foxx, Appeal No. 0120133080, U.S. Equal Employment Opportunity Commission.

IMPACT: The EEOC is now taking the position that sexual orientation discrimination is a form of sex discrimination. Employers could now face proceedings before the EEOC for sexual orientation discrimination, even though such discrimination has not previously been viewed as unlawful under federal law.

Mark T. Kobata and Marty Denis are partners in the law firm Barlow, Kobata and Denis, which has offices in Beverly Hills, California, and Chicago. To comment, email editor@diversity-executive.com.

A 2011 study by the National Center for Transgender Equality showed 26 percent of transgender people felt they had lost a job because of bias. Indeed, employers today receive claims for gender discrimination far more frequently than they did even a decade ago. In response, the U.S. Equal Employment Opportunity Commission is throwing its hat in the ring. It has filed amicus briefs inindividual litigants’ lawsuits brought in district courts in Georgia, Texas and North Carolina.

Employers cannot always control the insensitive or poorly worded statements employees make. However, there are steps diversity executives can take to decrease the likelihood that employees will express viewpoints inappropriate for the workplace or the number of employees who do not support an organization’s diversity and inclusion goals. 

First, employers must regularly train on nondiscrimination and professionalism policies. Gender identity and expression should be among the topics covered, and hopefully this training will occur well before these issues result in a lawsuit or a conflict. If employees are in the process of transitioning during their employment and the company has notice it will occur, it may be helpful to discuss with transitioning employees whether they would be comfortable with sensitivity training for their team. Offer to allow the transitioning employee to be present or make any statement at the training, but do not require it.

Other policies also should be reviewed. For example, any clothing standards or dress codes should be gender-neutral, rather than defining what men or women may wear. Transgender or transitioning employees should be permitted to wear attire that fits their gender identity, so long as it is professional or otherwise consistent with the company’s existing dress standards.

Likewise, policies regarding access to restrooms, locker rooms and other gender-specific facilities should be reviewed to make sure there are no assumptions or limitations that could negatively affect a transgender individual. Once employees have transitioned, they should be permitted to use the facilities associated with their full-time gender presentation. If there are concerns regarding locker rooms or other facilities, sit down with the transitioning individuals or other employees to discuss their concerns and suggestions. 

The transitioning or transgender persons’ wishes as to their name and pronouns should be honored. Ask transitioning employees what their preferences are, and ask what they would like communicated to co-workers. Co-workers should be told expressly that they must address employees consistently with their wishes and/or the employees’ gender presentation. Company records must, at an appropriate point, be updated to reflect the employee’s new gender identity.

Finally, employers may want to implement zero tolerance for any failure to follow the company’s direction on treatment of transgender employees. This does not mean that every employee who makes a faux pas or an insensitive comment needs to be fired on the spot, but it does mean the employer must address such comments and, if necessary, take appropriate action.