Now that circus surrounding Caitlyn Jenner f/k/a Bruce Jenner has died down, have you thought of the employment law implications of employing a gay, lesbian, bisexual or transgender (LBGT) employee?Few employers are aware that a transgender employee is protected against discrimination because of his or her status. These protections arise from recent Federal court rulings and the Equal Employment Opportunity Commission under Title VII of the Civil Rights Act of 1964, which made it illegal to discriminate “because of sex”. Almost all private and public sector employees and job applicants (at companies of 15 or more employees) are covered under Title VII. Historically, courts and administrative agencies that deal with employment law were not sympathetic to transgender people who were fired when they transitioned from one sex to another, or were “outed” for having transitioned previously.
Now that has changed.
In May of this year, the EEOC announced it will process and investigate sexual orientation, transgender and gender identity claims. Effectively, the EEOC’s position is that discrimination based on sexual orientation may be grounded in sexual stereotyping (men should be attracted to women and vice versa) and thus violate Title VII’s sex discrimination prohibition. Meanwhile, the federal court applicable to Northeast Indiana employers stated categorically that Title VII does not prohibit sexual orientation discrimination or related retaliation. Similarly, Indiana Civil Rights laws do not prohibit discrimination on the basis of sexual orientation, though arguments similar to the EEOC’s position under Title VII could be applied to gender identity and transgender discrimination.
On a helpful note, OSHA published a Guide to Restroom Access for Transgender Employees. Estimating that there are over 700,000 transgender adults in the U.S., OSHA believes that unsafe conditions can arise if transgender employees are restricted to certain facilities. Accordingly, the agency recommends that employers allow transgender employees to use the restroom consistent with their gender identity. The Guidance notes that employees should not be asked to provide medical documentation of their gender identity in order to have access to gender-appropriate facilities, nor use segregated facilities apart from their co-workers.
What should a prudent employer do? Just as it is not in your best business interests to discriminate on the basis of traditional sexual roles in the workplace, you should not do so in the future in transgender fact patterns. You should not refuse to hire, fail to promote, lay off or terminate a person based upon their transgender status, and allow restroom use consistent with their gender identity. Your handbook should be amended to reflect your awareness, and you should continue to deal with your employees based upon the objective criteria that you have adhered to in the past.
While the fact that two federal agencies will now investigate sexual orientation, transgender and gender identity claims is being touted as a breakthrough and is a “sea change” that opens the door for such parties, as long as you continue to practice the principles of non-discrimination, your hiring or continued employment of Caitlyn Jenners’ should prove uneventful.
Article by Loren K. Allison, attorney at law
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