A Blockbuster Month for Transgender Rights Raises Considerations for Employers
The legal rights of transgender people continue to materialize at breakneck speed. In a blockbuster month, the EEOC released guidance on facilities access for transgender employees under Title VII of the Civil Rights Act, the Department of Justice and North Carolina filed dueling lawsuits over the state’s controversial “bathroom bill”, and the White House issued guidance to public schools about their obligations to transgender students under Title IX of the Civil Rights Act. What do all of these developments mean for American employers who are covered by Title VII, the Federal law governing employment discrimination? The writing is on the wall from the perspective of the Federal agencies that enforce this law: employers must take action now to minimize their legal risk.
There are two interrelated prongs of “gender identity”-based sex discrimination: (1) adverse employment actions and/or harassment based on an employee’s status as a transgender person, and (2) regulating an employee’s access to facilities (such as bathrooms and locker rooms) based on their gender assigned at birth. The first prong covering general discrimination, has coalesced over the past thirty years, and now the second prong is coming into the spotlight.
Title VII protects workers with specific statuses from discrimination in the workplace (such as race, religion, and sex), but “gender identity” is not included among this enumerated list. Federal contractor laws and some states (including Louisiana, per Executive Order No. JBE 2016-11 which fully takes effect on July 1, 2016) include “gender identity” as an enumerated protected status for public employees and government contractors. For private employees, gender identity is protected under the “sex” category of Title VII. This reasoning stems from the landmark 1989 Hopkins v. Price Waterhouse Cooper case, in which the Supreme Court ruled that discrimination based on a person’s non-conformity with gender stereotypes constitutes discrimination under Title VII. In 2012, the EEOC expanded Hopkins to include protections for transgender employees in Macy v. Dept. of Justice, reasoning that discrimination based on transgender status stems from an employer’s reaction to an individual’s non-stereotypical gender expression compared to the individual’s gender assigned at birth.
Since 2012, the EEOC has prioritized its enforcement of gender identity sex discrimination issues in the private sector. In a rare move, the EEOC chose to litigate two cases in which transgender employees were terminated after their employers became aware of their plans to transition from one gender to another. One case, EEOC v. Lakeland Eye Clinic settled for $150,000.00 and a slew of requirements for policy changes, monitoring, and training. The other case, EEOC v. R.G. and G.H. Harris Funeral Home, remains embroiled in heated litigation.
Now that gender identity-based discrimination is effectively covered by Title VII, the newest issue to come under the EEOC’s Title VII microscope is restrictions on transgender employees’ access to facilities. News headlines this month have frequently addressed North Carolina and Mississippi’s controversial laws restricting bathroom use to an individual’s gender listed on his or her birth certificate, but the Federal government actually issued guidance on facilities access last summer. In OSHA’s “Guide to Restroom Access for Transgender Workers,” the Federal agency reasoned bathroom use is a safety matter: restrictions can make transgender employees fearful for their safety, experience mental anguish for being singled out, and suffer from health ailments as a result of avoiding bathroom use altogether. As such, OSHA recommended that employees should use the bathroom according to their gender identity—not the gender listed on their birth certificate.
Title IX of the Civil Rights Act, which governs public education institutions, has also steered the EEOC to its conclusion that Title VII encompasses transgender employees’ access to facilities. In April 2016, the Fourth Circuit Court of Appeals held in G.G. ex rel. Grimm v. Gloucester County School Board that schools must permit students to use the facilities matching his or her gender identity; restrictions based on the gender assigned at birth is discrimination under Title IX, which is often seen as persuasive precedent for analyzing Title VII claims.
Then, the tsunami hit. A few weeks later, the EEOC issued a “Fact Sheet” citing the Grimm decision, OSHA regulations, and the Macy case to warn that facilities restrictions can violate Title VII. In the same week, the Department of Justice issued a letter to North Carolina Governor Pat McCrory, explaining that the state’s law violated Title VII and giving North Carolina one week to confirm whether the state would comply, or face the possibility of a Federal lawsuit. North Carolina responded by filing its own suit to defend its law. Before the ink on the lawsuit had completely dried, the White House announced that it would issue guidance on transgender students’ facilities access under Title IX to every public school in the country.
Now, take a moment to catch your breath.
The private sector cannot ignore these substantial developments. As employment law grows to accommodate transgender employees and applicants, employers are faced with numerous day-to-day questions coming with this new legal landscape. Employers have more to worry about than just Title VII: there are dozens of laws that encompass the rights of transgender individuals in the workplace which may not be as obvious. The Federal Office of Personnel Management’s “Guidance Regarding the Employment of Transgender Individuals in the Federal Workplace” is helpful in this regard, and provides suggestions for records retention and easing an employee’s transition in the workplace. While discrimination and facilities use are undeniably a hot topic, there are other laws being currently litigated or on the radar for subsequent change, such as the constitutionality of the Americans with Disabilities Act’s exclusion of diagnoses such as gender dysphoria from the law’s protection.
The trend in law is clear: private employers covered by Title VII must take preventative maintenance measures now to ensure that its employees and applicants are not discriminated or harassed based on gender identity.