Transgender issues are in the news as of late, most notably surrounding transgender individuals and the use of public restrooms. What would you, as an employer, do if an issue involving a transgender employee were to arise in your workplace? What happens if a transgender employee wants to use the restroom of her choice and another employee objects? Or how will you apply a dress code and grooming policies in a non-discriminatory way? While Title VII does not specifically prohibit discrimination against transgender individuals, there is a growing trend to prohibit this type of workplace discrimination, following guidance from the Equal Employment Opportunity Commission (EEOC) and a growing number of state and federal courts. Additionally, nearly 20 states have extended statutory protection for transgender individuals to include private employers. Even though Georgia is not one of these states, you should be aware of the prevailing winds and consider how this may affect your organization’s policies and procedures moving forward.
In two recent opinions, the EEOC concluded that Title VII sex discrimination includes discrimination against transgender individuals. Macy v. Holder, EEOC Doc. No. 0120120821, 2012 WL 1435995 (Apr. 20, 2012) and Complainant v. McHugh, EEOC Doc. No. 0120133395, 2015 WL 1607756 (Apr. 1, 2015). A “transgender” individual is a person who was assigned to one gender at birth but identifies with and may have taken steps toward living as another gender. According to the EEOC, the following constitutes discrimination against transgender people:
In addition to the EEOC’s stance, the U.S. Department of Justice has barred its attorneys from arguing in court that transgender employees are not a protected class under Title VII. Finally, and even though Georgia does not expressly prohibit transgender discrimination, the Eleventh Circuit (the federal circuit in which Georgia sits) recently held that discrimination against a transgender individual employed by the State was sex-based discrimination under the Equal Protection Clause of the U.S. Constitution. Glenn v. Brumby, 663 F.3d 1312, 1316 (11th Cir. 2011).
Even though the above cases involve public sector employers, pragmatic private employers are wise to begin thinking about how to handle transgender issues now before a lawsuit arises. So what can you be doing?
Although not binding on private employers, the U.S. Office of Personnel Management has issued helpful guidance on how to treat transgender employees in the workplace including:
In addition to creating non-discriminatory policies and procedures, think about offering sensitivity training in the workplace. This is an emotionally-charged issue that affects all employees, some of whom may find it difficult to accept transgender individuals in the workplace.
The above recommendations give you as an employer something to think about before a problem arises. The law is evolving in this area and you should be prepared to face potential issues in your workplace. If you would like assistance in developing policies or offering sensitivity training, or if a problem arises, please give us the opportunity to help.