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Transgender Rights on the Front Page: A Continuing Conversation

May 13, 2016
HR Acuity

Guest post by Barbara Hoey, Kelley Drye & Warren LLP.

The Evolving Expectation of Employers

Transgender issues continue to confront employers in a number of different industries.

Late last year, a transgendered woman filed a complaint with the EEOC against one of the largest health care providers in the nation and commenced a federal lawsuit alleging sex discrimination in violation of Title VII and sought unspecified damages. See Seidler v. Sandford Health, et al. This case, along with a number of others filed more recently, highlights a growing issue for all employers, including those in the health care industry, namely the rights of transgender workers and the evolving expectation of employers.

In another example, the 5th Circuit issued a decision affirming summary judgment in favor of a trucking school, which had been accused by its former director of discrimination and retaliation, after she had hired a transgender employee (a woman who was transitioning to become a male). The director, Maggie Brandon, claimed that after she hired the transgender instructor, her employer threatened to “cut her pay in half.” She decided not to “wait and receive her first half-sized paycheck in the mail” and resigned her job. The lower court found that, due to the resignation, there had been no adverse employment action, and the 5th Circuit agreed. While the company prevailed, the case highlights the thorny issues which continue to confront employers as more transgender people enter the workforce. See Brandon v. Sage Corp., 14-51320 (5th Circuit).

The issue of transgender rights in the workplace has received a lot of attention in the media and the laws governing those rights continue to evolve. Transgender employees are demanding more and more rights and accommodations, and many employers are scrambling to respond to these increasing demands.

However, sometimes employee demands for accommodations can be unreasonable and can also be very difficult to meet operationally, and even more challenging to implement. The Seidler case is a good example. It appears that the employee in question, a transgender female, wanted to be given access to a women’s locker room, which she claimed was “consistent with her gender.” She was not given that access and had to thus store her coat in a ‘break room’, where she alleged it was vandalized. The plaintiff claims that she spoke with management, but still did not feel she was being treated equally. She ultimately left the job.

Reading between the lines, it is not difficult to envision why a request by a transgendered female for access to a female locker room facility may be difficult to meet. It is likely there were concerns about the privacy of other female employees who also used that locker room. That said, an employer has an obligation to treat all employees, including those who identify as transgender, equally. A number of federal agencies, including the EEOC and the Office for Civil Rights, take the position that this requires a transgender employee to be given access to the restroom and locker room facilities which comport with the gender they identify with. The fact that other employees may object, in most situations, is not going to be a viable defense to a claim of discrimination.

In fact, the EEOC recently took the reins on this question by issuing a “Bathroom” guidance, giving employers a further strong indication of where the agency is leaning when it comes to enforcement of LGBT rights in the workplace.

In the guidance, the EEOC makes clear again its position that Title VII prohibits discrimination against employees who are transgender – a term the guidance explains covers any person whose “gender identity or expression is different from the sex assigned to them at birth.”

The EEOC highlighted the Macy v. Dept of Justice case, (April 2012) when the agency first ruled that denying an employee “equal access to a common restroom – corresponding to that employee’s gender identity – is a form of sex discrimination,” in holding that:

  • The employer cannot condition use of that bathroom on proof that the employee had surgery or a medical procedure.
  • The employer cannot get around this requirement by offering the employee access to a single sex or private bathroom.
  • Also, the guidance expressly states that differences between state and federal law cannot be used as a basis to discriminate against LGBT workers.

In answering the question as to how an employer can “accommodate” the beliefs of other employees, who may not be comfortable with this, the agency is very clear:

“Supervisory or co-worker confusion or anxiety cannot justify discriminatory terms and conditions of employment. Title VII prohibits discrimination based on sex, whether motivated by hostility, by a desire to protect people of a certain gender, by gender stereotypes, or by the desire to accommodate other people’s prejudices or discomfort”.

The world—and the law—is evolving on this issue, and it is important for employers to recognize the key to compliance is understanding the law in their jurisdiction, revising existing policies and practices which may be inconsistent with recent decisions, and investing the time to explain these laws to employees who may have legitimate questions or concerns.

As always, we will stay abreast of developments in this evolving area of the law.

This article was originally posted on the Labor Days blog, December 17, 2015.

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