Transgender Discrimination Laws in Employment
Transgender employees often face very severe discrimination in the workplace based on their gender identity or gender expression. This type of discrimination can include a wide spectrum of offensive conduct, such as intra-office speculation and false rumors about a transgender employee’s gender identity. It can even extend to severe harassment as well as physical or sexual assaults. The U.S. Supreme Court has interpreted Title VII of the federal Civil Rights Act to cover gender identity discrimination.
Moreover, various states explicitly prohibit gender identity discrimination using one of three general approaches. Certain states, like Iowa and New Mexico, have enacted laws that explicitly include gender identity as a protected characteristic. Other states, such as Colorado and Minnesota, prohibit sexual orientation discrimination, and gender identity is included within the statutory definition of sexual orientation discrimination. Still other states, such as California, protect transgender employees from workplace discrimination by including gender identity or expression within the statutory definition of sex for purposes of its anti-discrimination laws.
Disparate Treatment and Disparate Impact
Under Title VII, both policies and practices involving disparate treatment and disparate impact are prohibited. Disparate treatment cases are those that involve intentionally discriminatory conduct by an employer. Disparate impact cases are those that involve a facially neutral employment policy or practice that nonetheless has a disproportionate effect on a group with a protected characteristic.
Discrimination in violation of Title VII exists, for example, when a hiring manager refuses to hire a transgender employee on the grounds that he or she will not fit the “culture” of the workplace. Similarly, there is unlawful discrimination when a factory rejects a job application from a transgender man because he does not fit the hiring manager’s sense of what a man should be like.
Examples of disparate impact could include strict rules about which gender can use each bathroom at a company. This could create an uncomfortable situation for transgender employees. In that case, it might be appropriate for the employee to ask for an accommodation to use the bathroom of the gender with which the employee identifies, even if this is not the bathroom that the employer believes is appropriate.
Harassment
Harassment on the basis of gender identity is also prohibited as a form of discrimination under Title VII. Harassment is offensive conduct that is so severe and pervasive that it creates a hostile workplace or results in an adverse employment decision, such as demotion, firing, or reassignment to a less prestigious position.
For instance, a transgender person might mention to her supervisor that she is taking hormones and intends to transition. If she is insulted and eventually fired, she may have a claim under Title VII for harassment and wrongful termination. Similarly, an employee who is fired because his transition is seen as “unnatural” may bring a claim.