Overview: Employers face unique issues and challenges with respect to transgender employees and applicants. Although gender identity is not currently protected under federal law, it is best practice for employers to treat transgender status and gender identity as a protected class and prohibit applicant and employee discrimination against transgendered individuals. Further, employers should know that many state and local laws prohibit discrimination based on gender identity. Employers should therefore institute a zero policy against discrimination based on transgender status and make sure that there is an effective system in place to bring complaints of discrimination and harassment.
Further, employers should be willing to accommodate the requests of transgender employees and applicants to make reasonable accommodations with regard to dress codes, appearance policies, restrooms and other sensitive issues unless the employer can establish that it would suffer an undue hardship. Employers should make sure that policies and practices are in place to deal issues such as employees transitioning, name changes and other matters involving employee privacy and confidentiality.
Although some employers may feel uncomfortable accommodating transgender employees, employers should aim to provide a tolerant work environment and only deny a transgender employee's request for accommodation if it can be justified by a business need.
Trends: Employers should understand that the law with regard to protection transgender status is changing rapidly.The EEOC has identified pursuing discrimination based on sexual orientation and gender identity as a priority in its Strategic Enforcement Plan. Additionally, President Obama has expressed that he will sign an Executive Order prohibiting discrimination by federal contractors based on sexual orientation and gender identity. There is also significant activity on the state and municipal level. States such as Massachusetts and California already address gender identity and transgender status and provide such individuals with employment protection. Further, a significant number of cities and counties prohibit discrimination based on gender identity.
Employers should also be aware that the EEOC recently recognized the right of a transgender employee to bring a discrimination claim under Title VII. In Macy v. Holder, EEOC No. 0120120821, the EEOC held that claims of discrimination based on gender identity, change of sex, sex stereotyping, and transgender status were a form of sex discrimination as such claims were based on sex. This may pave the way for increased employment protection for transgender employees and applicants. Additionally, the Supreme Court made history in June 2013 by issuing two decisions favoring same sex marriage proponents and extending same-sex couples greater benefits and protections.
Author: Beth P. Zoller, JD, Legal Editor
Both President Obama and the Department of Labor's Office of Federal Contractor Compliance Programs (OFCCP) have taken executive action to prohibit gender identity discrimination by federal contractors.
President Obama has signed an Executive Order protecting lesbian, gay, bisexual and transgender (LGBT) individuals from discrimination and harassment.
The Houston City Council recently approved the Houston Equal Rights Ordinance (HERO), an extensive ordinance prohibiting many types of discrimination by private employers, as well as in city employment, city services and city contract awards.
Although Wisconsin law prohibits discrimination based on sexual orientation but does not cover gender identity and expression, a recent county ordinance in Milwaukee County has been expanded to include protection from workplace discrimination for lesbian, gay, bisexual and transgender (LGBT) individuals. Two similar ordinances have also been passed in Topeka, Kansas.
A new law in Milwaukee County, WI, will prohibit discrimination based on gender identity and expression,. An ordinance in Topeka, KS, will establish a registry that will be open to both same- sex and opposite-sex couples who are not married and another ordinance in Topeka, KS will prohibit discrimination on the basis of gender identity in city employment and hiring.
Maryland Governor Martin O'Malley has signed the Fairness for All Marylanders Act (SB 212) into law, which will prohibit discrimination, harassment and retaliation against individuals based on gender identity.
A number of states and municipalities have passed laws which protect lesbian, gay, bisexual and transgender (LGBT) rights, such as sexual orientation and gender identity. Further, a number of states have passed legislation permitting same-sex marriages or civil unions/domestic partnerships between same-sex partners. A number of states also permit employees to take family and medical leave for same-sex partners. This chart details such requirements.
HR guidance on developing and implementing policies and practices aimed at preventing discrimination against transgender employees and applicants.