In a growing trend in employment law across the country, regulatory agencies are engaging in efforts to eliminate transgender discrimination. Employers should be aware of these developments and sensitive to issues that affect transgender employees.
EEOC Efforts to Protect Transgender Employees
The Equal Employment Opportunity Commission (the
"EEOC") began focusing its agenda on transgender
discrimination issues in 2012. In Macy v. Dep't of
Justice, EEOC Appeal No. 0120120821 (April 20, 2012), the EEOC
ruled that employers who discriminate against employees on the
basis of their transgender status violate Title VII. In April 2015,
in Lusardi v. McHugh, EEOC Appeal No. 0120133395 (April 1,
2015), the agency ruled that denying employees use of the bathroom
aligned with their gender identities and refusing to address
transgender employees by their preferred gender pronouns constitute
discrimination on the basis of sex, and thus also violate Title
VII. Although both addressed employees of the federal government,
these landmark rulings serve as the foundation of the EEOC's
plan to weed out transgender discrimination in the workplace.
The EEOC subsequently filed three lawsuits in three different
states, two of which (in Florida and Minnesota) were settled. In
April 2015, a Florida eye clinic paid a $150,000 settlement to a
transitioning employee (i.e., an individual transitioning
from one gender to another). In January 2016, the EEOC settled a
case with wide-ranging implications for the treatment of
transgender employees. Britney Austin, a transgender employee, was
denied access to the bathroom consistent with her gender identity
and purposefully addressed with the incorrect gender pronoun.
Pursuant to the consent decree resolving the case, Deluxe Financial
Services Corp. ("Deluxe") must revise its equal
employment opportunity policies to include a clear prohibition
against discrimination based on an employee's transgender
status. Deluxe also must comply with requests to change an
employee's name and gender and cannot prevent an employee from
using the bathroom aligned with the individual's gender
identity. Additionally, Deluxe will conduct annual training for all
employees that must address the prohibition of discrimination on
the basis of transgender status and gender identity. Deluxe also
must submit annual reports to the EEOC for the next three years
demonstrating its compliance with these requirements. Consent
Decree, EEOC v. Deluxe Financial Services, Inc.,
15-cv-2646(ADM/SER) (D. Minn. Jan. 20, 2016).
The EEOC shows no signs of stopping. In a press release following
the settlement against Deluxe, acting District Director Elizabeth
Cadle said, "EEOC considers protecting transgender, lesbian,
gay, and bisexual employees to be a strategic enforcement priority.
We will continue to assure that transgender employees receive the
full benefit of federal anti-discrimination laws in all
industries."
New York City Promulgates Guidelines
The EEOC is not the only entity focusing on transgender discrimination. On December 21, 2015, the New York City Human Rights Commission (the "Commission") issued strict guidelines prohibiting gender identity discrimination in the workplace. The guidelines mirror concerns of the EEOC, recognizing potential violations when an employer fails to use an employee's preferred name or pronoun or refuses to allow employees to use the restrooms aligned with their gender identities. The Commission's guidelines also prohibit sex stereotyping, imposing grooming standards based on gender, and providing discriminatory gender-based employee benefits. Further, employers are barred from considering gender when assessing accommodation requests (such as for gender reassignment surgery) and from engaging in harassment and retaliation based upon gender identity or expression. Violators face harsh financial penalties (up to $250,000) in addition to unlimited compensatory damages.
Employer Guidance
Given the increased scrutiny regarding the treatment of
transgender employees, it is essential that employers familiarize
themselves and their human resources professionals and managers
with these developments. Below are several easy tips for employers
to avoid being swept up in this relatively new and attractive area
of litigation.
Use Preferred Pronouns
- Use trans employees' preferred
gender pronoun.
- On employment applications and
similar documents, consider leaving a blank space to be filled in
for the employee's genderrather than providing only
"male" and "female" options.
- Note that some trans individuals
prefer nontraditional pronouns, such as "they" or
"ze."
- Update all internal records to
reflect the employee's self-identified gender.
- Educate managers and co-workers to use an individual's chosen pronoun.
Bathroom Facilities
- Allow trans employees to use the
restroom corresponding to their gender identities, unless all
facilities are single-occupancy bathrooms.
- Employers may not require trans
employees to use single-occupancy restrooms, while preventing them
from using the shared bathrooms corresponding to their gender
identities.
- Where available, employers should permit a trans employee to use a single-occupancy restroom if that is the employee's expressed preference.
Employment Policies
- Nondiscrimination policies must
include gender identity in the list of protected categories.
- Leave policies must reflect the needs
of transgender employees, treating transgender employees'
requests for leave or accommodations as an employer would treat any
other medical request, including leave requests to attend to
medical needs associated with transition.
- If a trans employee has adopted a new name, use the new name instead of the employee's birth name.Update employment records to reflect an individual's identified gender and name.
Training and Education
- Train human resources professionals regarding the complexities of transgender discrimination and how to properly address issues that may arise between or among employees.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.