SUMMER 2019 TODAY’S GENER AL COUNSEL
Labor & Employment
Transgender Protections in the Workplace By Trevor J. Hardy and Stephanie E. Harley
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any transgender individuals across the United States go to work every day unsure of whether they will lose their jobs because of their gender identity and/or expression. Although a minority of states and localities offer employment protections, the vast majority do not. As a result, transgender individuals in jobs and locales that lack protections may seek new opportunities with employers that offer inclusive, supportive environments. By knowing the law in your jurisdiction, and implementing policies that comply with or surpass the requirements, employers will ensure that they offer supportive environments that foster the retention of talented transgender individuals. Over the last 20 years, an influx of cases addressing transgender employment protections have made their way through federal district and appellate courts. Several federal appellate courts recognize that discrimination on the basis of gender identity or gender transition violates Title VII of the Civil Rights Act of 1964 (CRA), which protects individuals from discrimination in employment; Title IX of the CRA, which protects individuals from discrimination in education; or the Equal Protection Clause of the United States Constitution. In EEOC v. R.G. & G.R. Harris Funeral Homes, Inc., decided in 2018, the Sixth Circuit Court of Appeals held that “Title VII protects transgender persons because of their transgender or transitioning status, because transgender or transitioning status constitutes an inherently gender non-conforming trait.” In Barnes v. City of Cincinnati, the Sixth Circuit again determined that “Sex stereotyping based on a person’s gender non-conforming behavior is impermissible discrimination, irrespective of the cause of the behavior; a label, such as
[transgender], is not fatal to a sex discrimination claim where the victim has suffered discrimination because of his or her gender nonconformity.” The Sixth Circuit’s holding in Barnes affirmed the jury’s award of more than $300,000 in damages to the terminated employee and the trial court’s decision to award more than $500,000 in attorneys’ fees and costs based on the difficulty and novelty of the case. In another example, Glenn v. Brumby, the Eleventh Circuit Court of Appeals determined that a government employer violates the Equal Protection Clause when a decision maker fires a transgender employee because the employee
In April 2019, the United States Supreme Court accepted three cases related to employment protections for LGBTQ individuals. does not conform to gender stereotypes. The Seventh and Ninth Circuit Courts of Appeals have also weighed in and determined that discrimination based on gender identity, transition or stereotypes is impermissible. These decisions often emanate from earlier cases that prohibit discrimination based on gender stereotypes, including Price Waterhouse v. Hopkins, where the United States Supreme Court disavowed decisions based on gender stereotypes and confirmed statements from an earlier
case that “Congress intended to strike at the entire spectrum of disparate treatment of men and women resulting from sex stereotypes.” Other courts reject the contention that transgender individuals have workplace protections and do not hold employers liable for employment decisions based on an individual’s gender identity and/or expression. APPEALS COURTS DIFFER
Many observers recognize that a “circuit split” exists. Federal appellate courts disagree over whether transgender employees are protected from discrimination in employment, and there is no settled, national consensus addressing employers’ obligations to transgender employees. In light of the evolving nature of case law addressing protections for transgender employees, many employers are unsure of their responsibilities when an employee informs the employer that he or she is transgender and/or that he or she is going through a gender transition. In April 2019, the United States Supreme Court accepted three cases related to employment protections for LGBTQ individuals, including EEOC v. R.G. & G.R. Harris Funeral Homes, Inc. A decision on these cases is expected in 2020. There is no way to know exactly what the Court will do, and whether protections under Title VII of the CRA or some other law will extend to transgender individuals. In the interim, employers are left to examine the law in their judicial circuit, state and locality. Regardless of additional rulings on transgender workplace protections, fostering a welcoming environment minimizes the risk of litigation to determine whether the jurisdiction in which an employer operates recognizes protections for transgender employees. If an employer does not offer protections for transgender individuals, and is ruled to