Thursday, October 2, 2014

Transgender Employees: Time for Employers to Review Policies and Practices

As noted by us and many other commentators, the EEOC is making news right now with its pursuit of two lawsuits against employers it accuses of violating Title VII’s prohibition on sex discrimination by engaging in gender identity bias.  The suits are brought on behalf of transgender employees, and are consistent with a 2012 Commission ruling, which held that Title VII covers gender identity, transgender status, and an employee’s transition from one gender to the other. They are also consistent with the agency's current enforcement priorities, which include attention to workplace issues for lesbian, gay, bisexual and transgender employees.
 
Federal anti-discrimination law does not include sexual orientation as a protected class, and the EEOC is limited to addressing LGBT issues that fit under the prohibitions against sex discrimination.  Many states and some municipalities, however, directly prohibit discrimination in employment on the basis of gender identity, and some explicitly protect transgender status. In addition, federal contractors (and the federal government itself) are now prohibited from discrimination against LGBT employees. Given all that, and given the growing public awareness and acceptance of transgender individuals, employers who have not already done so should review and, if necessary, revise their relevant policies and practices.
 
Is your workplace ready to respond appropriately if one of your employees transitions from one gender to the other?  If you’re not sure, there are lots of resources available to assist you in getting ready.  This 2011 “…Pragmatic Guide for Lawyers and Human Resource Professionals” authored by Christine Michelle Duffy for the Association of Corporate Counsel is a good place to start, although it’s not completely up to date on the status of state and federal laws.  The Transgender Law Center published a “Model Transgender Employment Policy that was adopted by Chevron and Ernst & Young, among other companies.  Your state or city may have helpful information for employers, particularly if you operate in a jurisdiction that prohibits gender identity discrimination, and organizations like SHRM are likely to continue to write about the topic.
 
Posted by: Judy Langevin