August 30, 2016 Practice Points

EEOC Will Not Tolerate Transgender Employee Discrimination

Employers should know their responsibilities with respect to transgender employees' rights.

By Katheryn A. Mills

Recently, there has been significant attention focused on transgender individuals’ rights under state and federal law. Much of the debate has focused on the use of public restrooms in schools and stores. Transgender individuals’ rights, however, extend past the public sphere and into the workplace. Accordingly, employers should know their responsibilities with respect to transgender employees’ rights.

Title VII of the Civil Rights Act of 1964 prohibits sex discrimination. Whether it also prohibits discrimination based on sexual orientation or gender identity remains unclear. The U.S. Equal Employment Opportunity Commission (EEOC) has been clear, however, that it views sex-discrimination protections as encompassing sexual orientation and gender identity. As a result, the EEOC has actively pursued an end to such discrimination, particularly against transgender individuals. The EEOC recently stated that it will accept, investigate, and pursue charges from individuals who allege that they have been discriminated against because of their transgender (or gender identity) status or sexual orientation. The EEOC has also committed to addressing protections for lesbian, gay, bisexual, and transgender individuals in its Strategic Enforcement Plan.

In July 2015, the EEOC held for the first time that sexual-orientation discrimination is, on its face, sexual discrimination. (SeeBaldwin v. Dep’t of Transportation, EEOC Appeal No. 0120133080 (July 15, 2015)). In March 2016, the EEOC filed its first two lawsuits challenging sexual-orientation discrimination. Most recently, in July 2016, the EEOC sued a North Carolina fast-food restaurant, Bojangles Restaurants, Inc., for allegedly subjecting a transgender employee to a hostile work environment and retaliation based on her gender identity, in violation of Title VII. The suit alleges that the employee, a transgender woman, was subjected to numerous offensive comments about her gender identity and appearance, including statements that she should dress, talk, and conform her gestures to be more like a man. The complaint also asserts that the employee was fired after speaking with her area director about the harassment and refusing to transfer to another restaurant.

Despite the EEOC’s recent actions, case law remains unsettled with respect to Title VII’s scope. The Seventh Circuit, in its recent ruling that Title VII does not cover sexual orientation, left the invitation open for the U.S. Supreme Court to address the issue, noting that although the “writing is on the wall,” a determination that such discrimination is unlawful must come from the Supreme Court or new legislation. (See Hively v. Ivy Tech Comty. College, No. 15-1720 (7th Cir. July 28, 2016)).

In the meantime, based on the EEOC’s noted intention to end such discrimination, counsel should consider advising employers that they would be well-served to follow the guidelines outlined below.

  • Check state law and city ordinances. Several states, including Wisconsin, prohibit sexual-orientation discrimination under state anti-discrimination laws, and other states, such as Minnesota, Illinois, and Iowa, prohibit both sexual-orientation and gender-identity discrimination. In addition, many city ordinances include prohibitions against sexual-orientation and gender-identity discrimination. Employers should update their anti-harassment policies accordingly and incorporate those policies into regular anti-harassment trainings.
  • Affirmative Action Employers. President Obama’s Executive Order 13672 amended Executive Order 11246 to add sexual orientation and gender identity to the list of protected characteristics. As a result, federal contractors governed by Executive Order 11246 have an obligation to treat all applicants and employees without regard to their sexual orientation or gender identity. Employers should update their Affirmative Action program plans, policy statements, and handbooks accordingly.
  • Restroom use. Allow employees to choose the restroom that corresponds to their gender identity. Trending case law, many city ordinances, the Occupational Safety and Health Administration, and the EEOC agree that employees cannot be required to use a sex-specific restroom. Employers who have any concerns may install unisex restrooms or multiple-occupant, gender-neutral restrooms with lockable single stalls.
  • Name changes. Make necessary changes to company documents after an employee legally makes a name change, and use the employee’s preferred name and pronouns when referring to the employee in the workplace (regardless of legal name).
  • Benefits. Offer the same benefits to all employees, regardless of their gender or sexual orientation.
  • Dress code and grooming standards. Maintain these policies in a manner that does not discriminate on the basis of sex and apply them consistently across the workplace to avoid gender stereotypes.
  • While federal law in this area is unsettled, recent EEOC guidance makes clear that employers should be mindful to appropriately address issues related to transgender employee rights.

    Katheryn A. Mills is an associate with Godfrey & Kahn, S.C. in Milwaukee, Wisconsin.

    Copyright © 2016, American Bar Association. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or downloaded or stored in an electronic database or retrieval system without the express written consent of the American Bar Association. The views expressed in this article are those of the author(s) and do not necessarily reflect the positions or policies of the American Bar Association, the Section of Litigation, this committee, or the employer(s) of the author(s).