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 protections for individuals who identify as transgender is changing rapidly. On the federal level, while discrimination based on gender identity is not explicitly covered under Title VII, the Equal Employment Opportunity Commission (EEOC) takes the position that discrimination based on gender identity is a form of sex discrimination because it is based on sex. The EEOC has brought a number of lawsuits against high profile companies alleging gender identity discrimination and has made eradicating such discrimination part of its Strategic Enforcement Plan. Federal agencies such as the EEOC and OSHA advise that it is a violation of federal law to deny an employee equal access to a common restroom corresponding to the employee's gender identity, and that an employee should not be compelled to use the restroom of his or her designated sex at birth, especially if the employee is in the process of transitioning from one gender to another, or has chosen to live his or her life presenting in the other gender. Additionally, President Obama issued an Executive Order prohibiting gender identity discrimination by federal contractors. There is also significant activity on the state and municipal level. A significant number of states as well as municipalities prohibit gender identity discrimination and many require that an employer provide reasonable accommodations to individuals identifying as transgender.
Author: Beth P. Zoller, JD, Legal Editor
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HR guidance on developing and implementing policies and practices aimed at preventing discrimination against transgender employees and applicants.