This fall the Supreme Court will hear the case of EEOC v. R.G. & G.R. Harris Funeral Homes, in which it will decide whether Title VII prohibits discrimination on the basis of gender identity. The case is on appeal from a 2018 decision of the Sixth Circuit Court of Appeals. EEOC v. R.G. & G.R. Harris Funeral Homes. In Harris Funeral Homes, a former employee of a funeral home was terminated after she transitioned from male to female. The Sixth Circuit ruled that, while transgender status is not specifically protected under Title VII, alleged discrimination based on transgender status can be pursued under Title VII as a form of sex or gender-based stereotyping. The Supreme Court has accepted the case for appeal and is expected to resolve a split among federal appeals courts on the issue.

The number of people who openly identify as transgender, meaning a person whose sense of personal identity does not correspond with their birth sex or gender, or non-binary, meaning people who do not identify with or fit into the two-gender binary of male and female, is on the rise. The Supreme Court case may provide some clarity under federal law. In the meantime, many state and local governments have enacted laws to promote gender non-binary and transgender inclusive workplaces. Here is a brief summary of the major issues under federal and state law.

Federal law

The EEOC and OSHA take a position

The Equal Employment Opportunity Commission (EEOC) interprets Title VII’s prohibition of sex discrimination as forbidding any employment discrimination based on gender identity, contrary to the position taken by the Department of Justice that Title VII does not forbid gender identity discrimination. This difference in opinions will likely be resolved when the Supreme Court hears the R.G. & G.R. Harris Funeral Homes Case later this year.

The Occupational Safety and Health Administration (OSHA) takes the position that employees should be permitted to use the restroom that corresponds with their gender identity, regardless of their birth gender.

EEO-1 reporting

The federal EEO-1 form filed each year by companies with over 100 employees and certain federal contractors requires identifying employees by gender, among other things. The current EEO-1 form only recognizes two genders—male and female. Thus, employers must classify each employee as either male or female, without exception, but doing so can be more difficult as employees increasingly identify as non-binary or transgender.

To this point the EEOC has not issued any guidance on how to best report gender non-binary and transgender employees on the EEO-1 form. One option is to allow employees to self-identify and report their genders accordingly. However, if an employee chooses not to self-identify as male or female, employers are still obliged to make a good-faith determination for the purpose of completing the EEO-1 Report.

State law

Several years ago, California became the first state in the nation to require all single-occupancy restrooms in businesses, government buildings, and places of public accommodation to be gender neutral. Cities like Washington D.C., Philadelphia, Seattle, Chicago, and New York have adopted similar requirements.

Twenty-two states and Washington D.C. prohibit workplace discrimination on the basis of gender identity or expression, and a number of municipalities, including New York City, have passed similar laws. In Ohio, over twenty cities have adopted similar protections, and a bill introduced in the state legislature could extend these protections to all employees working in the state.

Conclusion

We anxiously await the Supreme Court’s guidance in R.G. & G.R. Harris Funeral Homes later this year. Regardless of the Supreme Court’s decision, employers would be wise to recognize that this is an emerging area of the law in which state and city specific legislation is constantly enlarging the rights of transgender and non-binary employees.