EEOC Showing New Aggressiveness Regarding Transgender Employment Discrimination

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EEOC Showing New Aggressiveness Regarding Transgender Employment Discrimination

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Gender identity discrimination in employment is prohibited sex discrimination under Title VII of the 1964 Civil Rights Act and can result in an EEOC lawsuit, as two companies in Florida and Indiana recently discovered.

Suits In Florida And Indiana

In late September, the EEOC filed its first-ever lawsuits alleging discrimination against employers regarding transgender employees. In Indiana, the EEOC suit alleges that funeral home director Amiee Stephens was fired after she told her employer in Michigan she was undergoing a gender transition. In the Florida case, Brandi Branson – initially hired by an eye clinic as Michael – claims she was fired after she began to express her gender identity as female.

In announcing the suits, the EEOC specifically referenced its 2012 ruling in Macy v. Dep’t of Justice, EEOC Appeal No. 0120120821, 2012 WL 1435995 (April 20, 2012), in which it ruled that employment discrimination against employees because they are transgender, because of their gender identity, and/or because they have transitioned (or intend to transition) is discrimination because of sex, and thus violates Title VII.

The filing of these actions is also proof that the EEOC intends to vigorously follow through on the elements of its 2012 Strategic Enforcement Plan that make “coverage of lesbian, gay, bisexual and transgender individuals under Title VII’s sex discrimination provisions” a top enforcement priority.

Widespread Discrimination Against Transgender Employees

A 2011 study conducted by the National Gay and Lesbian Task Force found that 90 percent of transgender people surveyed reported harassment or discrimination on the job, with 47 percent saying they had been fired, not hired or denied a promotion because of their transgender identity.

As more and more transgender individuals feel comfortable expressing their gender identity and are more open about their transition between genders, employers need to be increasingly cognizant of their obligations to treat the sexual identities of their transgender employees as they would female or male employees in terms of avoiding any adverse employment actions based on their transgender status.

Workplace Issues Unique To Transgender Employees

Transgender employees, however, can present unique challenges and potential pitfalls for employers who may have a difficult time with gender role stereotyping or are unsure how to deal with practical issues for those who are in the process of transitioning while employed. Employers can minimize conflict, misunderstanding, and potential exposure by taking a respectful approach to transgender employees in transition, including:

  • Treating the transition with sensitivity and confidentiality, as one would with medical issues or marital difficulties;
  • Accepting the employee’s dressing in the clothes of their target gender, and applying any dress code applicable to that gender to the employee;
  • Using the names and pronouns appropriate to the employee’s new gender, including their new chosen first name;
  • Once the employee has begun living and working full-time in the gender that reflects his or her gender identity, employers should allow access to restrooms and (if provided to other employees) locker room facilities consistent with his or her new gender identity.

If you have questions about issues involving transgender employees or how the EEOC’s recent efforts may affect you company’s policies and practices, please contact Ohrenstein & Brown at (888) 260-6821