In “Injustice at Every Turn: A Report of the National Transgender Discrimination Survey,” published in 2011, researchers found that harassment and mistreatment at work is a near-universal experience for transgender and gender non-conforming people and that its manifestations and consequences are many. But until recently, there has been no recognized federal statutory prohibition against employment discrimination protecting transgender and gender non-conforming people. Efforts to enact the Employment Non-Discrimination Act, which would provide federal statutory protections against workplace discrimination by most private and public employers on the basis of sexual orientation and gender identity, are stalled in the House of Representatives since its passage by the Senate in November 2013.

Employers should not wait, however, to implement measures aimed at preventing gender stereotyping and minimizing the risk of a discrimination lawsuit. Several developments over the past couple of years — and, in particular, during the past year — at the Equal Employment Opportunity Commission (EEOC), the Executive Branch, and the Justice Department may make the passage of this new legislation less important to ensuring that all Americans, regardless of sexual orientation and gender identity, receive equal protection against discrimination and harassment at work.

Noteworthy Developments

As part of its Strategic Enforcement Plan (SEP) for fiscal years 2013–2016, the EEOC has identified as an enforcement priority the “coverage of lesbian, gay, bisexual and transgender individuals under Title VII’s sex discrimination provisions.” Since then, the Commission has received 300 charges involving claims of gender identity/transgender discrimination and 1,330 charges involving claims of sexual orientation discrimination, according to the statistics published by the EEOC through the third quarter of fiscal year 2014.

Consistent with its SEP, the EEOC filed two lawsuits involving sex discrimination against transgender individuals last year. In EEOC v. Lakeland Eye Clinic, P.A. (M.D. Fla., Civ. No. 8:14-cv-2421-T35), the EEOC sued a Florida-based organization of health care professionals alleging that it violated Title VII by firing an employee “because she is transgender, because she was transitioning from male to female, and/or because she did not conform to the employer’s gender-based expectations, preferences, or stereotypes.” In that case, the EEOC alleges that the employee performed her duties satisfactorily, but after she began to present as a woman and informed the clinic she was transgender, she was fired.

Similarly, in EEOC v. R.G. & G.R. Harris Funeral Homes, Inc. (E.D. Mich., Civ. No. 2:14-cv-13710), the EEOC alleged that the employer had discriminated against the employee for the same Title VII violations noted above. In this case, the employee had been employed since 2007 by the defendant as a funeral director/embalmer and had a good performance record. In 2013, the employee gave the employer a letter explaining that she was transitioning from male to female. Shortly thereafter, the employee was fired because, according to the employer, what she was “proposing to do” was unacceptable.

In July of last year, President Obama signed an executive order making it illegal for federal contractors to discriminate on the basis of sexual orientation or gender identity. Thus, federal contractors are expected to have policies that prohibit discrimination based on sexual orientation and gender identity.

On December 15, 2014, the Justice Department released a memo advising that it will now interpret Title VII as extending to protect discrimination claims based on gender identity, including transgender workers, reversing an earlier department position on the issue. Consequently, the government can now bring claims against employers on behalf of workers who have been discriminated against because they are transgender.

Employers Take Heed

Guidance for employers on how to incorporate these developments into their employment policies and guidelines should be a 2015 priority for legal advisors and human resource professionals. The EEOC has issued a brochure on gender stereotyping as guidance on preventing employment discrimination of lesbian, gay, bisexual, and transgender (LGBT) workers. That brochure advises that it is illegal for an employer to deny employment opportunities or permit harassment because an applicant or employee does not conform to traditional gender stereotyping. The following examples are provided:

• A woman does not dress or talk in a feminine manner.
• A man dresses in an effeminate manner or enjoys a pastime (like crocheting) that is associated with women.
• A female employee dates women instead of men.
• A male employee plans to marry a man.
• An employee transitions from female to male or male to female

While the EEOC’s brochure is helpful, much more is needed in the workplace to sensitize managers, supervisors, and employees about the issues affecting LGBT workers. As a start, employers hiring a transgender individual or an employee undergoing gender transition should provide gender-appropriate uniform or permit gender-appropriate attire, access to appropriate restrooms, and facilitation of name change, as well as training for all employees and managers to increase tolerance. Confidentiality should be maintained during and throughout the transition process.

As the law in this area is emerging, it is best to consult with counsel to determine in what ways your business is and may be affected.

If you have any questions about these developments or your company’s policies, please contact:

• Madeline S. Baio (267.519.6825; mbaio@goldbergsegalla.com)
• Caroline J. Berdzik (609.986.1314; cberdzik@goldbergsegalla.com)
• Employment and LaborPractice Group.