Quirky Question # 192:

A long-time employee has informed us of his decision to undergo a sex change.  We are concerned about the reactions of co-workers and aren’t clear if we should be doing anything in response.  As an employer, are we required to take any actions?

Jen’s Analysis of Quirky Question # 192:

The question of whether this worker is protected against discrimination under federal and many state laws is a relatively settled matter of law.  To start, I want to clarify some terminology: Individuals undergoing a sex-change may refer to themselves in a number of ways including transsexual, transvestite, transgender, or intersex, among others.  All of these labels are descriptive of individuals who live, at least in part, as a gender that may differ from that expected of them.  The term “transitioning” refers the process by which an individual undergoes physical changes to their sex.  I am going to use the term transgender to respond to this question but the answer would be the same regardless of how the employee identifies.

Title VII does not expressly protect transgendered employees; rather Title VII expressly prohibits discrimination on the basis of race, color, religion, sex, or national origin.  See 42 U.S.C. § 2000e.  Many courts, including the Eighth Circuit, initially interpreted the law as conferring no protections to transgendered individuals.  See Sommers v. Budget Mktg., Inc., 667 F.2d 748, 750 (8th Cir. 1982).  In Price Waterhouse v. Hopkins, 490 U.S. 228 (1989), however, the Supreme Court held that a female employee who was not stereotypically feminine was protected by the law since “we are beyond the day when an employer could evaluate employees by assuming or insisting that they matched the stereotype associated with their group . . . .”  Id. at 251.

After Price Waterhouse, courts have almost uniformly held that Title VII protects transgendered individuals, since the basis of the discrimination could be characterized as a reaction to the individual’s failure to conform to the stereotypes of his/her sex.  See, e.g., Smith v. City of Salem, 378 F.3d 566, 572 (6th Cir. 2004); Schwenk v. Hartford, 204 F.3d 1187, 1198-1203 (9th Cir. 2000); Rosa v. Park West Bank & Trust Co., 214 F.3d 213, 215-16 (1st Cir. 2000).

The most recent decision by the Eleventh Circuit, Glenn v. Brumby, No. 1:08-cv-02360 (11th Cir. Dec. 6, 2011), soundly affirmed this judicial trend of extending anti-discrimination protections to transgendered employees since the Glenn Court held that discrimination against a transgendered employee must meet heightened scrutiny in the public employment context – a more exacting standard then that required in Title VII cases.  Important for employers, the Eleventh Circuit noted that employers’ fears of co-workers’ reactions to an employee transitioning would not justify discrimination – would not constitute an important governmental purpose – indicating that employers cannot use other employees’ potential prejudices and reactions as defenses to discrimination.  Additionally, the panoply of state laws that expressly protect transgendered individuals, including Minnesota’s, see Minn. Stat. § 363A.03 subdiv. 44, indicate that employers would be best served to anticipate and proactively address the issue rather than wait for any problems to arise.

Moreover, even more recently, on April 20, 2012, the EEOC, in deciding a case involving the Bureau of Alcohol, Tobacco & Firearms, held in Macy v. Holder that a “complaint of discrimination based on gender identity, change of sex, and/or transgender status is cognizable under Title VII.”  The EEOC’s ruling was grounded on Hopkins, a 2008 case from the D.C. Circuit, Schroer v. Billington, the Glenn decision discussed above, and other federal court decisions. (For a discussion of the Schroer decision, see Quirky Question # 68.)  The EEOC’s decision, binding on federal agencies, may have broad implications for private employers as well, particularly when considered in light of the pre-existing trend among federal courts.

So practically speaking, what do Glenn and Macy mean for employers?  Essentially, providing workplace training and policies that incorporate transgendered employees in a proactive manner may protect employers from discrimination lawsuits.  Further, such training and policies will provide an employer the same types of defenses if litigation arises that anti-harassment policies and training currently provide in other contexts.  Not to mention, it’s the right thing to do.

There is no need to reinvent the wheel; after all, most employers have solid sexual harassment policies and procedures already in place.  Since the same laws are at issue, employers need only incorporate the issue of transgender employees into existing trainings and policies.

In particular, employers should:

  • Update anti-discrimination and harassment policies to include terms such as transgender as a protected status;
  • Disseminate updated policies, either by auditing an employee handbook if applicable, posting, or otherwise distributing the updated policies;
  • Train human resources personnel on the issue so that they are attuned to any potential issues;
  • Incorporate discussion of transgender anti-discrimination and anti-harassment expectations into ongoing training – there is no need to offer separate training on this issue, simply add the issue to existing programs;
  • Monitor the workplace.

Courts currently require no more regarding transgendered employees than the protections required under Title VII; so as long as employers have sound up-to-date sexual harassment policies and procedures, incorporation of transgendered individuals into those policies should be organic and simple to implement.  And as with all other workplace discrimination issues, the more proactive you are with these simple steps, the better chance you have to inoculate yourself against claims of discrimination.  While these suggestions may seem simple, in the constantly changing world of workplace discrimination law, an ounce of prevention is worth a pound of cure.