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.
Several 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. California protects transgender employees from workplace discrimination by including gender identity or expression within the statutory definition of sex for purposes of its anti-discrimination laws.
While federal law does not explicitly prohibit gender identity discrimination, the EEOC has issued an opinion that employers that discriminate on the basis of gender identity are violating the prohibition against sex discrimination under Title VII of the Civil Rights Act of 1964. This opinion was delivered in connection with the case of a transgender woman who was denied federal employment once an agency learned she had undergone a transition. Although it is an EEOC opinion or decision, the federal judicial trend is towards finding that gender identity discrimination is a form of sex discrimination, which is prohibited under Title VII and certain constitutional guarantees.
Disparate Treatment and Disparate Impact
Under traditional analyses of sex discrimination 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.
Based on the EEOC opinion and federal judicial trends, it is likely that employers who intentionally discriminate against transgender employees will run afoul of the prohibition against disparate treatment on the basis of sex. For example, it is likely that sex discrimination in violation of Title VII exists 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 may be unlawful sex 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; this is often argued as a form of illegal sex stereotyping.
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. An employer can deny an accommodation, however, if it causes an undue hardship.
Harassment on the basis of gender identity is also prohibited as a form of sex 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.
Congress and state legislatures sometimes revisit employment laws to assess whether they adequately balance the interests of employers and employees. Accordingly, the federal and state laws related to gender identity discrimination may change.