Transgender employees have the right to work in an environment that is free of discrimination and harassment, the same as any other employee. The discomfort, prejudice, and anxiety of employees, supervisors, or customers do not justify discriminatory treatment of transgender employees.
The EEOC recently announced the first resolution of a lawsuit challenging discrimination based upon sexual orientation under Title VII of the Civil Rights Act of 1964. The lawsuit, filed by an employee after a supervisor made comments such as “I want to turn you back into a woman,” settled for $182,000 and a promise that the firm would provide training on LGBT workplace issues.
Title VII Applies to Transgender Employees
While Title VII does not explicitly protect transgender status, the U.S. Equal Employment Opportunity Commissions (EEOC) has been pursuing such discrimination complaints and is advising employers to consider sexual orientation, gender identity, change of sex, and/or transgender status as protected classes.
According to the EEOC, denying an employee equal access to the bathroom that corresponds to the employee’s gender identity is sex discrimination. Employers must not restrict an employee to a single-user bathroom or require an employee to use a bathroom that is located unreasonably far from the employee’s work station, or require proof of medical procedures.
Once an employee informs the employer that he/she is transitioning to the other gender, the employer should apply the dress code that is applied to other employees of that gender. Employers should also consider eliminating unnecessary gender-specific dress and appearance rules from dress codes and grooming policies.
In addition, employers, including managers, supervisors, and co-workers, must use the preferred names and pronouns of transgender employees. An employer’s continued and intentional misuse of names and pronouns could result in litigation and liability. Personnel records should reflect the preferred names and pronouns. Failing to address transgender protections and treatment in the workplace may create a substantial risk of liability and result in costly litigation.
Risk Management Resources Are Available
Schinnerer has employment practices risk management resources available to policyholders. While these don’t specifically address transgender employees, the concepts and guidance are still relevant.
- Managing the Risks of Employment Practices
- Management Advisories: look for the “Employment Practices” category
- Guidelines for Improving Practice
Schinnerer also recognizes that employers are not perfect and that discrimination claims happen all the time. That’s why we have insurance coverage available to help firms manage that exposure. You can apply for coverage here.