In recent years, protections for transgender workers have been an evolving area of employment law. Federal court cases, state and local laws, and recent guidance from the Equal Employment Opportunity Commission (EEOC) have helped shape the current landscape of transgender protections. Here's what you need to know:
Federal Law:
Title VII of the federal Civil Rights Act (Title VII) prohibits employers from discriminating against applicants and employees on the basis of their sex (among other characteristics). In recent years, the EEOC, which is the agency that enforces Title VII, has taken the position that protections on the basis of sex extend to gender identity (a person's gender-related identity, appearance, or behavior, regardless of whether it's different from that traditionally associated with the person's physiology or assigned sex at birth).
Under laws that prohibit gender identity discrimination, employers may not treat employees who are transgender or gender nonconforming differently.
Given its position, which is currently being challenged (see Federal Courts below), the EEOC may take enforcement action against employers for:
- Refusing to hire, promote, or employ individuals because of their gender identity.
- Firing employees for dressing according to their gender identity.
- Failing to allow transgender employees to use a restroom that is consistent with their gender identity and/or restricting transgender employees to a single-user bathroom when other employees may use common restrooms.
Federal Courts:
On October 8, 2019, the U.S. Supreme Court heard arguments in cases challenging whether Title VII covers gender identity and sexual orientation discrimination. Some lower federal courts have found that Title VII does prohibit such discrimination, but others have ruled the opposite. The U.S. Supreme Court's ruling is expected in May or June 2020.
OSHA:
The Occupational Safety and Health Administration (OSHA) has issued guidance on restroom access for transgender employees. The guidance says that employers should allow employees to use restrooms consistent with their gender identity and to provide options to employees whenever possible, such as:
- Single-occupancy gender-neutral (unisex) facilities; and
- Use of multiple-occupant, gender-neutral restroom facilities with lockable single occupant stalls.
State & Local Laws:
Many states and local jurisdictions have enacted laws that expressly prohibit employers from discriminating against applicants and employees on the basis of their gender identity. In these jurisdictions, applicants and employees would generally be protected from discrimination under state law. Currently, these states include:
*In May 2018, the Michigan Civil Rights Commission issued an interpretive statement clarifying that state law prohibits discrimination based on gender identity.
Dress Codes:
In addition to prohibiting discrimination, many of these state laws require employers to allow individuals to appear, groom, and dress consistent with their gender identity.
Additional Protections:
California has enacted robust protections for transgender workers. For example, the state generally prohibits employers from inquiring about or requiring documentation or proof of an individual's sex, gender, gender identity, or gender expression as a condition of employment.
California also requires employers to abide by an employee's request to be identified with a preferred gender, name, and/or pronoun, including gender-neutral pronouns. However, if it's necessary to meet a legally mandated obligation, such as completing a Form W-2, employers may use an employee's gender or legal name as indicated in a government-issued identification document. Employers must also display a notice about transgender rights in the workplace.
Additionally, California and several other states require all single-user toilet facilities in any business to be identified as all-gender facilities.
Conclusion:
Make sure you fully understand the rules and protections that apply to transgender workers and watch for future developments in this area. Additionally, review your policies, practices, and supervisor trainings to determine if you need to make updates.
