A Transition in the Law: Transgender Discrimination in the Workplace

Submitted by the Labor & Employment PAC

By: Karina L. Schrengohst, Esq.; Royal, P.C.; Northampton, Massachusetts

On May 1, 1989, the United States Supreme Court held that discriminating against individuals based on perceived non-conformity with gender stereotypes is a form of sex (gender) discrimination prohibited by Title VII of the Civil Rights Act of 1964. See Price Waterhouse v. Hopkins, 490 U.S. 228 (1989). Since then, discrimination based on transgender status or gender identity has been a developing area of the law. Recently, there has been a lot of debate on the local, state, and national level over access to bathrooms for transgender individuals. As the public debates this issue, legislators, administrative agencies, and courts are shaping the law that prohibits gender discrimination, including discrimination against transgender individuals. In light of this, employers should understand how to navigate through the legal landscape of an evolving area of discrimination law.

Some state legislatures have expanded rights and recognized gender identity as a protected class under state anti-discrimination laws. Other states, however, have tried to take steps to limit the rights of transgender individuals. Although Title VII does not explicitly prohibit discrimination based on transgender status or gender identity, the Equal Employment Opportunity Commission (EEOC), the federal administrative agency responsible for enforcing Title VII, has clearly indicated that discrimination based on gender identity is gender discrimination prohibited by Title VII. The EEOC has also explicitly stated that contrary state law is not a defense under Title VII.

The EEOC defines “transgender” simply as “people whose gender identify and/or expression is different from the sex assigned to them at birth.” The EEOC has found that unlawful sex discrimination includes, for example, failing to hire an applicant because he or she is transgender, firing an employee who is planning or has made a gender transition, denying an employee access to a bathroom corresponding to that employee’s gender identity, or otherwise discriminating in the terms and conditions of employment, and harassing an employee because of transgender status, including intentionally failing to use the name and gender pronoun that corresponds to an employee’s gender identity.

In a landmark case, in 2012, the EEOC for the first time held that intentional discrimination against a transgender individual because that person is transgender is gender discrimination prohibited by Title VII. See Macy v. Dep’t of Justice, EEOC Appeal No. 0120120821 (April 20, 2012). Mia Macy (“Macy”), a transgender woman, filed a complaint against the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) alleging employment discrimination in violation of Title VII. After a telephone interview, Macy was informed that she would be hired if she passed the background check. However, shortly after the ATF learned that Macy was transitioning from male to female, it informed her that funding had been cut and the position she applied for was no longer available. Macy later learned that the ATF hired someone else for the position. In this case, the EEOC stated that gender discrimination occurs when “an employer discriminates against an employee because the individual has expressed his or her gender in a non-stereotypical fashion, because the employer is uncomfortable with the fact that the person has transitioned or is in the process of transitioning from one gender to another, or because the employer simply does not like that the person is identifying as a transgender person.”

Since Macy, in 2013, the EEOC found that the intentional misuse of a transgender employee’s name and pronoun may constitute gender discrimination and harassment. See Jameson v. U.S. Postal Service, EEOC Appeal No. 0120130992 (May 21, 2013). In addition, in 2014, the EEOC found that an employee whose employer refused to revise its records to reflect a name change due to a change in the employee’s gender identity stated a valid claim of gender discrimination under Title VII. See Complainant v. Dep’t of Veterans Affairs, EEOC Appeal No. 0120133123 (April 16, 2014). Further, in 2015, the EEOC found that an employer’s restrictions on a transgender woman’s use of a common female restroom constituted disparate treatment. See Lusardi v. Dep’t of the Army, EEOC Appeal No. 0120133395 (March 27, 2015).

OSHA and the Department of Labor’s Office of Federal Contract Compliance Programs (OFCCP), like the EEOC, require that a transgender employee be allowed to use the bathroom that corresponds to his or her gender identity. Similarly, other federal agencies have had an evolving understanding of workplace discrimination that includes gender identity and have issued guidance prohibiting same. For instance, in 2011, the Office of Personnel Management issued guidance prohibiting discrimination based on gender identity. In addition, in 2014, President Obama signed Executive Order 13672 prohibiting federal contractors and subcontractors from discriminating on the basis of gender identity and sexual orientation.

Finally, federal courts are increasingly finding that laws prohibiting gender discrimination apply to transgender individuals.

Considering the current trend of interpreting gender discrimination law, to reduce the risk of litigation, employers would be wise to take steps to ensure that their policies and practices related to hiring, promotion, demotion, termination, and other terms and conditions of employment do not discriminate against individuals based on transgender status, gender identity, or perceived non-conformity with gender stereotypes. Additionally, employers should educate their employees that discrimination based on gender identity is unlawful and will not be tolerated in the workplace. Further, employers should train employees with supervisory roles on best practices, equal access to bathrooms, recognizing harassment, and generally how to respond when employees approach them regarding these issues. Finally, because this is a developing area of the law, employers should consult with their employment counsel when issues arise in the workplace concerning transgender employees.

Karina L. Schrengohst, Esq. is managing partner at Royal, P.C., a boutique, management-side labor and employment law firm located in Northampton, Massachusetts. Karina specializes exclusively in management-side labor and employment law. She represents employers in state and federal courts as well as before administrative agencies in a variety of areas of employment law, including employment discrimination, harassment, and retaliation.