It’s no secret that the EEOC—and even some courts—read Title VII to prohibit discrimination against transgender employees. A growing number of state and city laws also specifically include gender identity and/or expression as protected characteristics. But while employers may understand the legal dangers of firing someone for “coming out” as transgender, the extent of employers’ day-to-day obligations with respect to transgender employees in the workplace is far less clear. For example:
- Are transgender employees entitled to access particular bathrooms or change their company employment records? And, if so, at what point in an employee’s gender transition must an employer accommodate such requests?
- How should employers address negative reactions and attitudes from coworkers?
Two recent EEOC cases provide initial guidance for employers trying to navigate these tricky—and still relatively uncharted—employment law waters.
On June 4, 2015, the EEOC filed a Title VII gender discrimination suit against an employer for refusing to allow an employee to use the women’s restroom after the employee had transitioned from male to female. (See EEOC v. Deluxe Financial Services Inc., Case No. 0:15-cv-02646, in the U.S. District Court for the District of Minnesota). The EEOC’s complaint also alleges that the employee suffered a hostile work environment, citing: (1) the company’s refusal to change the employee’s name or gender in many of its internal systems—apparently because the employee had not yet completed gender-change surgery; and (2) other employees making derogatory comments about the employee’s female appearance and refusing to call the employee by her new female name, or to refer to the employee with female pronouns.
The EEOC took a similar stance in an April 2015 administrative ruling, finding that the U.S. Army had violated Title VII by: (1) requiring a transgender employee to use a single-user restroom (i.e., not allowing the employee to use the common women’s restroom) until after the employee “had surgery”; and (2) tolerating a team leader’s repeated, intentional references to the employee by male pronouns, “sir,” and the employee’s former male name. (See Lusardi v. McHugh, Appeal No. 0120133395).
Taken together, these two EEOC actions indicate the agency’s view that employers must do more to comply with Title VII than simply refraining from firing employees based on their transgender status: employers also have certain affirmative obligations to cooperate with an employee’s gender transition, regardless of other employees’ potential discomfort. Although the legal validity of the EEOC’s views in this area have not yet been vetted by courts, here are some best practices to help avoid a legal skirmish with the EEOC in the interim:
- Allow a transgender employee to use the bathroom of his or her own, self-identified gender and choice. Although providing a gender-neutral bathroom may seem reasonable, the EEOC appears to view restrictinga transgender employee to a gender-neutral bathroom as discriminatory.
- Follow the employee’s lead on how he or she would like to be addressed—and be wary of coworkers’ intentional or “accidental” use of incorrect pronouns/names.
- Handle the employee’s name change in the same manner as any other name change. While payroll or tax records may require legal documentation, the employee’s email address, website bio, and other similar items should not.
- Do not condition bathroom use, changes to company records, or any other requests on the employee’s completion of gender-transition surgery.
- Communicate clearly with all employees your expectations as to the type of behavior considered appropriate toward transgender employees as part of your broader communications about all forms of workplace discrimination and harassment, and enforce those expectations.
- Given the difficulties inherent in this nascent legal subject matter, employers may also want to consider developing a gender-transition policy now—even if unaware of any transgender employees in the current workforce—in an effort to prevent potential issues before they arise.
Stay tuned here for reports on future developments in this rapidly evolving area.