Brave New World: Evolving Protections For Transgender Employees

By Michelle Kunihiro 

Aldous Huxley wrote in his novel Brave New World that “If one’s different, one’s bound to be lonely.” With increased visibility (Orange is the New Black’s Laverne Cox; Caitlyn Jenner), transgender people are both less different and less lonely.

State anti-sex discrimination laws are expanding to include explicit protections for transgender employees. Currently, nineteen states and Washington, D.C. explicitly include “gender identity” in their anti-discrimination statutes:

Equality Maps, “Non-Discrimination Laws“ (Jul. 9, 2015)

What does this mean for employers in those jurisdictions?  

·         Allow transgender employees to dress in conformity with their gender identity. See e.g., Cal. Govt. Code 12949 (“employer shall allow an employee to appear or dress consistently with the employee’s gender identity or gender expression”).

·         Allow transgender employees to use the restroom that corresponds with their gender identity.See, e.g., Tamara Lusardi, Complainant, (Apr. 1, 2015) EEOC DOC 0120133395, 2015 WL 1607756, at *8 (improper to deny pre-op transgender employee access to bathroom; “an agency may not condition access to facilities — or to other terms, conditions, or privileges of employment — on the completion of certain medical steps that the agency itself has unilaterally determined will somehow prove the bona fides of the individuals’ gender identity”).

·         Treat transgender employees as a protected group for purposes of analyzing potential discrimination or harassment.

What does this mean for employers in other states?

There, the question is whether Title VII’s ban on discrimination on the basis of sex extends to more than the biological determinism of birth. The EEOC thinks that it does. In a case involving a federal government employee, it held that “claims of discrimination based on transgender status, also referred to as claims of discrimination based on gender identity, are cognizable under Title VII’s sex discrimination prohibition.” Appeal No. 0120120821 (Apr. 20, 2012). So too does the OFCCP.

Some courts concur with the EEOC. Smith v. City of Salem 378 F.3d 566, 568 (6th Cir. 2004) (discrimination against transgender employees for wearing dresses and makeup are engaging in sex discrimination under Title VII); Schroer v. Billington, 577 F. Supp. 2d 293 (D.D.C. 2008) (discrimination based on the fact that an applicant planned to transition was sex discrimination under Title VII, making an analogy to religious discrimination against converts); Glenn v. Brumby, 663 F.3d 1312 (11th Cir. 2011) (terminating a transgender woman for dressing femininely and disclosing plan to transition was sex discrimination under Title VII).

Others hold fast to the tradition that for Title VII sex is biology-only. See, e.g., Etsitty v. Utah Transit Auth., 502 F.3d 1215 (10th Cir. 2007) (Title VII does not protect transgender people); Ulane v. Eastern Airlines, Inc., 742 F.2d 1081 (7th Cir. 1984) (same); Sommers v. Budget Marketing, Inc., 667 F.2d 748 (8th Cir. 1982) (same).

Pending a Supreme Court decision, the difference is whether “sex-stereotyping” is a category of evidence or a distinct Title VII claim.   Compare, Price Waterhouse v. Hopkins, 490 U.S. 228 (1989) (evidence of “sex stereotyping,” i.e. discriminating against employees for failing to conform to gender roles, critical in proving sex discrimination in a case involving neither sexual orientation nor gender identity issues) with Schwenk v. Hartford, 204 F.3d 1187, 1201 (9th Cir. 2000) (ruling for transgender prisoner in a civil rights case involving no employment statutes; under Price Waterhouse, “what matters . . . is that in the mind of the perpetrator the discrimination is related to the sex of the victim”).

What is the emerging best practice for employers?

There is an emerging consensus with employer policies that recognize and respect the right of transgender employees. Some employers, such as Ernst & Young, Chevron, and the federal Office of Personnel Management, have chosen to implement a stand-alone transgender employment policy for clarity on issues such as the ones outlined above. The Transgender Law Center’s website also provides a model transgender employment policy.

This trend line appears to be driven by multiple factors. First, for businesses operating in multiple states, there is no point in recognizing these employee rights in one state but not across the river in another state. Second, with the increased visibility in the media, including Caitlin Jenner’s coming out and public transition on her show, I Am Cait, social perceptions of transgender people continue to shift toward acceptance. Finally, the arguments against interpreting the word Title VII’s “sex” to include “gender” – while arguably correct as a matter of statutory interpretation – are losing out to the public sentiment of acceptance, so fighting that rearguard action is futile. As Huxley advised in his novel: “Chronic remorse, as all the moralists are agreed, is a most undesirable sentiment.”

Special thanks to our Law Clerk, Anya Morgan, for her assistance in researching and drafting this blog post.

Original