As noted by us
and many other commentators,
the EEOC is making news right now with its pursuit of two lawsuits
against employers it accuses of violating Title VII’s prohibition on sex
discrimination by engaging in gender identity bias. The suits are brought on behalf of
transgender employees, and are consistent with a 2012
Commission ruling, which held
that Title VII covers gender identity, transgender status, and an employee’s
transition from one gender to the other. They are also consistent with the agency's current enforcement
priorities, which include attention to workplace issues for lesbian, gay,
bisexual and transgender employees.
Federal
anti-discrimination law does not include sexual orientation as a protected
class, and the EEOC is limited to addressing LGBT issues that fit under the
prohibitions against sex discrimination.
Many states
and some municipalities, however, directly prohibit discrimination in
employment on the basis of gender identity, and some explicitly protect
transgender status. In addition, federal
contractors (and the federal
government itself) are now prohibited from discrimination against LGBT
employees. Given all that, and given the growing public awareness and
acceptance of transgender individuals, employers who have not already done so
should review and, if necessary, revise their relevant policies and
practices.
Is your
workplace ready to respond appropriately if one of your employees transitions
from one gender to the other? If you’re
not sure, there are lots of resources available to assist you in getting ready. This 2011 “…Pragmatic
Guide for Lawyers and Human Resource Professionals” authored by Christine
Michelle Duffy for the Association of Corporate Counsel is a good place to start,
although it’s not completely up to date on the status of state and federal
laws. The Transgender Law Center
published a “Model
Transgender Employment Policy” that was adopted by Chevron and Ernst & Young, among
other companies. Your state or city may
have helpful information for employers, particularly if you operate in a
jurisdiction that prohibits gender identity discrimination, and organizations
like SHRM are likely to continue to write about the topic.
Posted by: Judy Langevin
