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Gender Transitioning in the Workplace: Why it Matters to You

By Mary Kathryn Curry

The term transgender – and the public’s understanding of gender reassignment – has become more commonplace since Diane Sawyer’s April 2015 interview with former Olympian and TV personality, Bruce Jenner and the more recent Vanity Fair coverage of Caitlyn Jenner. Employers should take note that transgender status is subject to increasing legal protections. 

Title VII of the 1964 Civil Rights Act prohibits gender discrimination, but does not expressly include transgender status a defined protected class.  However, the Equal Employment Opportunity Commission has recently brought its third transgender discrimination lawsuit under the existing Title VII framework prohibiting gender stereotyping: EEOC v. Deluxe Financial Services, Inc. In this case, the EEOC alleges that the Minnesota check-printing company illegally discriminated against a transgender employee by prohibiting her from using the women’s restroom, as well as subjecting her to a hostile work environment. The employee had performed her job satisfactorily for two years before presenting herself as a woman. At that time, as the EEOC alleges, coworkers began using hurtful epithets and would intentionally use the wrong gender pronouns to refer to her.

This case follows two previous suits filed by the EEOC, EEOC v. Lakeland Eye Clinic and EEOC v. R.G. & G.R. Harris Funeral Homes, Inc.

In the first lawsuit the EEOC filed of this type, the EEOC claimed that Lakeland Eye Clinic, a Florida-based organization of healthcare professionals, improperly fired its Director of Hearing Services after she began to present as a woman, despite having performed her job duties satisfactorily throughout her employment. The case recently settled, with the employer agreeing to pay $150,000 in damages and adopting a new gender discrimination policy that prohibits discrimination because an employee is transgender, is transitioning from one gender to another, or because the employee does not conform to the organization’s gender-based preferences or stereotypes.

The lawsuit against R.G. & G.R. Harris Funeral Homes, Inc. alleges that, despite having adequately performed her duties, a funeral director was fired for undergoing a gender transition from male to female. The funeral home moved to dismiss the complaint arguing, among other things, that “gender identity disorder” is not protected by Title VII. The Michigan district court, however, found a transgender person, just like anyone else, can bring a sex stereotyping gender discrimination claim under Title VII. Applying well-settled gender stereotyping precedent, the court noted there is no distinction between the employer that acts on the basis of a belief that a woman must not be aggressive, and an employer that acts on the belief that a man should not wear a dress and makeup.   

In addition to these recent federal cases, nineteen states have enacted prohibitions on transgender discrimination.  These developments highlight the need for employers to set a tone of tolerance and mutual respect when dealing with transgender issues. Employers should also consider including prohibitions on sex stereotyping and gender nonconformity in their non-discrimination policies. Counsel can assist with the implementation of guidelines that address dress and appearance rules, the use of the name and pronouns appropriate to the gender of the employee going through a transition, and provide for adequate access to restrooms and locker room facilities consistent with the employee’s gender identity.