MRR Article: The State of Transgender Employment Discrimination

By: Neil S. Sarkar, Esq.
Mazanec, Raskin & Ryder Co., LPA

Virtually everyone has been talking over the last few months about Caitlyn Jenner, the transwoman (formerly) known as Bruce Jenner, perhaps due to the potentially polarizing nature of the subject involving how to interact with transgender persons in our society.

At the same time, many still remain unfamiliar with the laws addressing the issue of transgender discrimination, including in the workplace. Regardless of how business owners or other employers might feel personally about this subject, suffice it to say that it is here to stay as are accompanying legal obligations to ensure transgender civil rights in the workplace. With this in mind, now appears to be an opportune time to review some of the new rules in place and recent cases that may apply to employers.

In early June, 2015, the Occupational Safety and Health Administration (“OSHA”) issued a guidance on transgender bathroom access. OSHA promulgated this guidance based on its pronouncement that transgender employees should have the right of restroom access that corresponds to their gender identity. This guidance has been instituted with an eye towards ensuring that transgender employees are given the right to work in a way that is consistent with how they live the rest of their daily lives—regardless of their actual birth gender.

In its guidance, OSHA cites laws that call for the idea of affording employees access to restroom facilities based on gender identity. In describing best practices, OSHA indicates that many employers have adopted written policies of their own to ensure that all employees – including transgender employees – have prompt access to appropriate facilities. Workplace safety is implicated because OSHA states that restricting employees to using only restrooms that are inconsistent with their gender identity, for example, “singles out” transgender persons and may otherwise make them avoid using bathrooms altogether while at work, potentially causing them physical injury or illness as a result. OSHA’s guidance calls for employers to find solutions that are safe and convenient and respect transgender employees.

At the same time, the Equal Employment Opportunity Commission (“EEOC”) recently filed an employment transgender discrimination lawsuit against a Michigan employer in the U.S. District Court for the Eastern District of Michigan. This region is part of the Sixth Circuit, which means that if the case is appealed, this decision could apply to employers in Ohio. In this case, the plaintiff, Aimee Stephens, formerly worked as an employee at Michigan-based funeral home, where Stephens was its funeral director. By all indications, Stephens worked there for years until one day, July 31, 2013, she sent her employer a letter that she would be undergoing a gender transition from male to female and thereafter would be wearing appropriate female business attire while on the job. In the EEOC’s complaint, it is alleged that the employer fired Stephens about two weeks later, telling Stephens that what she was “proposing to do” was unacceptable.

Filing suit, the EEOC asserted that this employer violated Stephens’ rights based on gender-based considerations, thereby violating Title VII which prohibits sex discrimination in employment. More precisely, the EEOC alleged that Stephens was fired because she failed to conform to sex or gender-based preferences, expectations or stereotypes in the workplace.

In response, the employer moved to dismiss the EEOC’s lawsuit on the grounds that transgender employees are not in a legally protected class under Title VII as other individuals are in the legally protected class based, for example, on race, color, religion, gender or national origin. Denying the employer’s motion, the Court noted that the lawsuit should proceed based on the EEOC’s legal argument that the employer in this case fired Stephens for failing to conform to its own gender-based preferences, expectations or stereotypes.

This analysis is important, and employers should take heed: had the EEOC simply argued that Stephens, as a trans-sexual, should have legally protected class status, the Court would have granted the employer’s motion to dismiss the lawsuit. Instead, the Court focused on the point that the EEOC asserted that Stephens was being discriminated against in violation of Title VII because she failed to conform to her employer’s own gender-based preferences, expectations or stereotypes. That is, Stephens was being discriminated against based on unlawful sex-stereotyping gender discrimination. As such, this lawsuit will be allowed to proceed to adjudication. Further, it is precisely the legal issue of improper gender-based stereotyping against trans-gender individuals or, in some instances, individuals with a specific sexual orientation that many employers do not understand. As such, many of these same employers, just like the funeral home in the above case, not only may not understand what they should be considering to do so as to comply with Title VII and other applicable state or local laws; they also may be subject to legal liability for failing to take proactive steps to address these issues.

Based on OSHA’s recent guidance, heightened attention to the issues of transgender discrimination, and cases such as these, it behooves employers – regardless of how they may personally feel on this topic–to do the following in order to prevent, position, and protect their business and comply with applicable laws:

  • Adopt a well drafted policy prohibiting against gender and trans-gender discrimination and harassment;
  • Provide appropriate training (including anti-harassment training) for all personnel, including both managers and employees, to identify and prevent and/or remedy gender and trans-gender discrimination and harassment;
  • Ensure that these policies also are consistent with any other personnel policies, including those concerning workplace harassment, equal employment opportunity, and social media use;
  • Consider adopting similar policies pertaining to preventing and correcting sexual orientation discrimination; and
  • Make sure your policies confirm to all applicable federal, state and local laws that apply to your workplace

For more information or if you have any questions, contact Neil at 440.287.8292 or via email at nsarkar@mrrlaw.com.

Neil SarkarAbout the Author: Neil S. Sarkar is a Partner with Mazanec, Raskin & Ryder. He focuses his practice on employment and labor law, civil rights and government liability, in addition to counseling and litigation, business law and insurance defense. He devotes much of his practice to defending employers before the Equal Employment Opportunity Commission, National Labor Relations Board and state government agencies including the Ohio Civil Rights Commission and the State Employment Relations Board.