Recently, businesses have faced an increasing number of lawsuits alleging discrimination and harassment against transgender employees. There are several steps businesses can take to ensure transgender employees feel welcome at work while minimizing the company’s risk of a lawsuit.
The term “transgender” is an umbrella term for persons whose gender identity, gender expression, or behavior does not conform to that typically associated with the sex to which they were assigned at birth. According to the National Center for Transgender Equality (NCTE), approximately 50% of transgender individuals are harassed at work and 26% have lost a job due to transgender bias.
Title VII of the Civil Rights Act of 1964 (which applies to businesses with at least 15 employees) prohibits employment discrimination based on race, color, religion, sex and national origin. While gender identity is not officially protected under Title VII, the Equal Employment Opportunity Commission (EEOC) (responsible for enforcing federal laws against discrimination) has interpreted transgender discrimination as falling under the general category of sex discrimination. For example, the EEOC has held that denying a transgender employee access to the bathroom consistent with his or her gender identity is sex discrimination.
There may soon be further clarification on the protections afforded transgender employees under federal law, after the United States Supreme Court took up the issue on Oct. 8, 2019. The Court will answer whether Title VII prohibits discrimination against transgender individuals based on either their status as transgender individuals or because of sex stereotyping.
Regardless of the status of federal protection, there are approximately 24 states that offer state-specific protection to transgender individuals. Furthermore, these protections can apply to businesses smaller than 15 employees (e.g. California’s Fair Employment Housing Act, which protects transgender employees from discrimination and harassment, applies to businesses with five or more employees).
Regardless of the state in which you reside, there are certain practices that businesses can take to avoid liability for gender identity discrimination or harassment.
Employees should be permitted to use the restroom that corresponds to their gender identity. Employers should avoid asking employees for any medical or legal documentation confirming that they identify as a certain gender prior to using a gender-specific bathroom. If there are both gender-specific and a gender-neutral bathroom at the worksite, a transgender employee should not be required to utilize only the gender-neutral bathroom. To the extent any co-workers express discomfort with the transgender individual using the bathroom that corresponds with their gender identity, the EEOC states that “supervisory or co-worker confusion or anxiety cannot justify discriminatory terms and conditions of employment.”
When referring to a transgender employee, supervisors and co-workers should refer to the employee by the gender pronoun with which the employee identifies. This is true whether the communication is verbal, in informal writing such as an email, or in a more formal document such as a performance review. An intentional failure to use proper pronouns or to call the person by their requested name could contribute to a hostile work environment. Employers should use the employee’s chosen name in almost all instances including for email accounts, business cards, identification cards for building access and employee directories. The employer can request additional documentation from the employee only when requesting a name or gender change on official documentation in the personnel file.
Employers should also ensure that their anti-discrimination and harassment policy specifically references transgender individuals and that the company stays up-to-date on harassment training, which should include discussion on transgender individuals. Certain instances of potential harassment can occur simply because an employee does not have an understanding of transgender individuals and may be unaware of the correct pronoun to use. This type of naïve mistake can be avoided with proper training.
If the employer has a specific dress code, especially one that distinguishes between male and female employees, employers should not restrict transgender employees from dressing in the attire of their gender identity.
Finally, employers should take harassment or discrimination complaints seriously, regardless of whether they seem insignificant or a mistake. Taking these actions will help ensure that transgender employees feel comfortable in the workplace and prevent future lawsuits.
Devin Rauchwerger is an associate with Fisher Phillips in Los Angeles. He may be reached at (213) 330-4492 or drauchwerger@fisherphillips.com.
