Transgender issues are in the news as of late, most notably surrounding transgender individuals and the use of public restrooms. What would you, as an employer, do if an issue involving a transgender employee were to arise in your workplace? What happens if a transgender employee wants to use the restroom of her choice and another employee objects? Or how will you apply a dress code and grooming policies in a non-discriminatory way? While Title VII does not specifically prohibit discrimination against transgender individuals, there is a growing trend to prohibit this type of workplace discrimination, following guidance from the Equal Employment Opportunity Commission (EEOC) and a growing number of state and federal courts. Additionally, nearly 20 states have extended statutory protection for transgender individuals to include private employers. Even though Georgia is not one of these states, you should be aware of the prevailing winds and consider how this may affect your organization’s policies and procedures moving forward.
In two recent opinions, the EEOC concluded that Title VII sex discrimination includes discrimination against transgender individuals. Macy v. Holder, EEOC Doc. No. 0120120821, 2012 WL 1435995 (Apr. 20, 2012) and Complainant v. McHugh, EEOC Doc. No. 0120133395, 2015 WL 1607756 (Apr. 1, 2015). A “transgender” individual is a person who was assigned to one gender at birth but identifies with and may have taken steps toward living as another gender. According to the EEOC, the following constitutes discrimination against transgender people:
- Taking an adverse employment action against an employee, such as demoting, bypassing for a promotion, or firing, because the person is transgender or because the person expresses an intention to transition from male to female or vice versa.
- Offering a job to an applicant who initially presents as one sex, and then rescinding the offer upon learning that the applicant plans on transitioning to another sex.
- Behaving in a hostile manner toward a transgender employee because they do not act or look like the employer thinks a man or a woman should act.
- Refusing to allow the employee to wear the clothing associated with the gender with which they identify.
- Failing or refusing to use a transgender employee’s preferred name and pronoun, if that conduct is sufficiently severe and pervasive to create a hostile work environment.
In addition to the EEOC’s stance, the U.S. Department of Justice has barred its attorneys from arguing in court that transgender employees are not a protected class under Title VII. Finally, and even though Georgia does not expressly prohibit transgender discrimination, the Eleventh Circuit (the federal circuit in which Georgia sits) recently held that discrimination against a transgender individual employed by the State was sex-based discrimination under the Equal Protection Clause of the U.S. Constitution. Glenn v. Brumby, 663 F.3d 1312, 1316 (11th Cir. 2011).
Even though the above cases involve public sector employers, pragmatic private employers are wise to begin thinking about how to handle transgender issues now before a lawsuit arises. So what can you be doing?
Although not binding on private employers, the U.S. Office of Personnel Management has issued helpful guidance on how to treat transgender employees in the workplace including:
- If an employee is transitioning from one gender to another, treat it with sensitivity and confidentiality.
- Evaluate and consider eliminating gender-specific dress and appearance rules. Dress codes should not be used to prevent a transgender employee from living consistently with his or her gender identity.
- Use the name and pronouns appropriate to the gender the employee is presenting at work.
- If certain job assignments are gender specific, consider the gender that the employee identifies with before making the assignment.
- In the hiring process, if a person has already transitioned, be aware when conducting background and reference checks, that they may have been known by a different name. In such an instance, hiring managers should respectfully ask whether the applicant was previously known by a different name and confirm the name and gender that should be used during the application process.
In addition to creating non-discriminatory policies and procedures, think about offering sensitivity training in the workplace. This is an emotionally-charged issue that affects all employees, some of whom may find it difficult to accept transgender individuals in the workplace.
The above recommendations give you as an employer something to think about before a problem arises. The law is evolving in this area and you should be prepared to face potential issues in your workplace. If you would like assistance in developing policies or offering sensitivity training, or if a problem arises, please give us the opportunity to help.