Update Company Policies for Transgendered Employees

Although no federal statute explicitly prohibits employment discrimination based on gender identity, the Equal Employment Opportunity Commission has actively sought out opportunities to ensure coverage for transgender individuals under Title VII’s sex discrimination provisions under its Strategic Plan for Fiscal Years 2012-2016. After the EEOC issued its groundbreaking administrative ruling in Macy v. Bureau of Alcohol, Tobacco, Firearms and Explosives, EEOC Appeal No. 012012081 (April 23, 2012), where it held that transgendered employees may state a claim for sex discrimination under Title VII, some courts have trended to support Title VII coverage for transgendered employees.

To address potential challenges and lawsuits that may arise, employers should consider updating codes of conduct as well as non-discrimination and harassment policies. While policies may differ based on an employer’s business, there are some key features to consider:

  • Include “gender identity” or “gender expression” in non-discrimination and anti-harassment policies. Gender identity refers to the gender a person identifies with internally whereas gender expression refers to how an employee expresses their gender—i.e. how an employee dresses. The way an employee expresses their gender may not line up with how they identify their gender.

  • Establish gender transition guidelines and plans. A document should be established and available to all members of human resources and/or managers to eliminate mismanaging an employee who is transitioning. The guidelines may identify a specific contact for employees, the general procedure for updating personnel records, as well as restroom and/or locker room use.

  • Announcements. After management is informed, and with the employee’s permission, management should disseminate the employee’s new name to coworkers and everyone should begin using the correct name and pronoun of the employee. Misuse of a name or pronouns may create an unwelcome environment which could lead to a lawsuit.

  • Training and compliance. Employers should review harassment and diversity training programs and modules to ensure coverage of LGBTQ issues. All employees should be trained regarding appropriate workplace behavior and consequences for failing to comply with an organization’s rules.

In addition to the potential liability under federal law, some state laws provide a right of action for transgendered employees who are discriminated against at work; therefore, employers should review the laws of the jurisdictions in which they operate to ensure compliance.

© Polsinelli PC, Polsinelli LLP in California

EEOC Sues Florida and Michigan Companies for Transgender Discrimination

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The Equal Employment Opportunity Commission (“EEOC”) has just filed suit against two companies for alleged discrimination against transgendered employees. The suits were filed separately in Florida and Michigan, against Lakeland Eye Clinic and G.R. Harris Funeral Homes, Inc., respectively. In both cases, employees alleged that they were fired after they disclosed they were undergoing gender transitions.

Title VII does not specifically protect against transgendered persons. In 2012, however, in Macy v. Dep’t of Justice, EEOC Appeal No. 0120120821 (April 20, 2012), the EEOC ruled that employment discrimination against employees because they are transgender, because of gender identity, and/or because they have transitioned (or intend to transition) is discrimination based on sex, and thus violates Title VII.

The EEOC identified “coverage of lesbian, gay, bisexual and transgender individuals under Title VII’s sex discrimination provisions” as one of their top enforcement priorities in its 2012 Strategic Enforcement Plan. Thus, these suits should not be surprising. Earlier this year, President Obama also issued an Executive Order prohibiting federal contractors from discrimination against lesbian, gay, bisexual and transgender workers.

In light of the recent emphasis on the protection of these individuals, employers should take extra precautions to ensure that no discriminatory practices are in force in the workplace. Further, all adverse employment decisions should be properly documented and managers and supervisors should be properly trained about what to do should a discrimination-related issue arises.

© 2014 by McBrayer, McGinnis, Leslie & Kirkland, PLLC. All rights reserved.
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