The transgender community has seen a recent surge in legal, policy, and rule-making developments affording it greater protections from employment discrimination. For example, although federal anti-discrimination laws do not explicitly prohibit discrimination on the basis of gender identity, 16 states1, the District of Columbia, and over 140 local governments now have laws expressly prohibiting discrimination on the basis of gender identity or expression. In addition, the Eleventh Circuit recently ruled that while transgender individuals do not make up their own protected class, such individuals might still enjoy protection from discrimination under the recognized protected classes of sex and gender if an employer takes adverse action against them because their appearances and/or behaviors do not fit gender stereotypes. See Glenn v. Brumby, (11th Cir. 2011). Finally, the Equal Employment Opportunity Commission (EEOC) ruled earlier this year, in Macy v. Holder, that Title VII protects transgender individuals from discrimination2. Although Macy does not bind federal courts, it will likely influence how courts view and decide transgender cases. Moreover, the EEOC will now accept and investigate Title VII claims alleging discrimination based on transgender status against private-sector employers.
In the wake of these developments, employers should prepare for a possible increase in gender-identity discrimination claims and review their policies and practices to help reduce the risks of such claims. The following are suggested practices for employers to navigate the new terrain:
- Revise Existing Policies and Practices: Many issues affecting transgender applicants and employees are not unique, and an organization's existing policies and practices apply equally well with limited revision. Employers should add "gender identity or expression" to their lists of protected categories in their EEO, anti-discrimination, and anti-harassment policies. Likewise, employers should amend their employee orientation and management training programs to address the addition of transgender protections.
- Audit Internal Forms: From employment applications to direct-deposit authorizations, audit internal forms to see which ones require the person filling them out to check "male" or "female." If such data is unnecessary, consider removing the question. If the data is necessary, consider adding an "other" option. Likewise, when processing social security number verifications, take second looks at "no match" letters. Often, these arise when the applicant's stated gender does not match the Administration's records. Gender is an optional data entry for employers, so consider not submitting gender at all, or resubmitting social security verifications without gender when faced with a "no match."
- Inspect Insurance Policies: Employers should examine the coverage exclusions and limitations of the medical insurance plans they offer to employees. While less common, some policies deny health coverage to transgender people altogether. More subtle variations might include denying coverage for claims associated with gender transition even though those claims might be covered for others. Examples include hormone therapy, hysterectomies, and psychotherapy. Or, some policies might limit coverage to gender-specific conditions that could exclude transgender insureds. Examples include if a male transitions to female but later develops prostate cancer. A close analysis of insurance coverage can help an employer identify gaps in coverage that might adversely affect transgender employees.
- Treat an Individual's Transgender Status Confidentially and Sensitively: Again, an organization's existing employment policies and legal obligations often extend seamlessly to transgender individuals. For instance, the Family Medical Leave Act (FMLA), Americans with Disabilities Act (ADA), HIPAA, and the Genetic Information Nondiscrimination Act (GINA) each limit an employer's ability to seek medical information and require employers to maintain employee medical information confidentially. The same principles ought to apply when an employer learns that an applicant or employee is transgender. Once an individual chooses to express a different gender at work, however, an untrained workforce could expose the employer to liability if the individual is harassed or discriminated against by supervisors and coworkers. Training employees early on that such behavior is inappropriate and intolerable will reduce risk.
Once an employee announces transition and begins to present full time as another gender, the employer should take appropriate measures to recognize the employee's "new" identity. This includes changing the person's name and gender on all personnel and administrative records, e-mails, directories, business cards, and updating photos on identification badges and/or promotional materials.
- Restrooms, Locker Rooms, and Other Gender-Specific Areas: Generally speaking, employees are to use those facilities that match their full-time gender presentation, regardless of one's stage of transition, if transgender. Currently, there is no requirement for employers to construct new facilities to accommodate transgender people, and if there is a stand-alone bathroom/locker room, transgender employees should not be required to use it.
- Dress Codes: Reasonable dress and grooming codes that serve a legitimate business purpose are lawful. Employers should review such codes to avoid gender stereotypes. For example, instead of requiring men to wear suits and women to wear dresses, a gender-neutral policy would require everyone in the workforce to dress professionally. To the extent dress or grooming codes do contain gender-specific rules, however, those should apply to employees based on the employees' outward gender expression, even if that does not match their presumed gender.
As with all lists of "best practices," the suggestions above are not comprehensive and might not be practical for all employers. In the wake of new developments in this area of the law, however, it is beneficial for employers to be attuned to potential risks and the opportunities for curtailing these risks.
If you have questions regarding this article or other labor or employment issues, please contact the author, Aisha Sanchez, firstname.lastname@example.org, an attorney in our Tampa office or the FordHarrison attorney with whom you usually work.
Aisha Sanchez is an associate in our Tampa, Florida office. Aisha concentrates her practice on representing management in employment matters including alleged discrimination, harassment, and retaliation claims under Title VII, ADA, ADEA and state law discrimination. Aisha has published several articles on the legal developments pertaining to the transgender workforce. Recently she was a featured speaker at the GLBT-Allies Diversity Summit at Wilton Manor's Pride Center, where she addressed best practices for creating a comfortable work environment for transgender and transsexual employees.
1 California, Colorado, Connecticut, Hawaii, Illinois, Iowa, Maine, Massachusetts, Minnesota, New Jersey, New Mexico, Nevada, Oregon, Rhode Island, Vermont, and Washington prohibit discrimination based on gender identity.
2 See Macy v. Holder, Appeal No. 0120120821 (April 20, 2012).