Transgender Protections in the Workplace: Be a Leader, Not a Test Case

by Trevor J. Hardy and Stephanie E. Harley

Many 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. While a minority of states and localities offer employment protections for transgender individuals, 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 for transgender individuals and other traditionally underrepresented minorities. By knowing the law in your jurisdiction, and implementing policies that comply with or surpass the requirements of that law, employers will ensure that they offer welcoming and supportive environments that foster the acquisition and 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 U.S. 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 relative 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 does not conform to gender stereotypes. The Seventh and Ninth Circuit Courts of Appeals have also weighed in and determined that discrimination on the basis of 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 U.S. 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.

Many observers recognize that a “circuit split” exists, which indicates that federal appellate courts disagree over whether transgender employees are protected from discrimination in employment, and that there is no settled, national consensus addressing employers’ obligations to transgender employees. In light of the in-flux 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.

On April 22, 2019, the U.S. 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 this trio of cases is expected in 2020. While commentators discuss possible outcomes, 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 an open, welcoming environment minimizes the risk of becoming embroiled in 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 have violated a transgender employee’s rights, the employer faces severe consequences including, but not limited to: 1) payment of damages to the employee, which may include front pay, back pay, benefits, and other damages; 2) possible payment of the employee’s legal fees and costs, which may be subject to a multiplier based on the novelty and/or complexity of the case; 3) an exodus of diverse talent that expects workplace protections for transgender and other minority individuals; and 4) reputational harm resulting from media reports on an employer’s acts of discrimination against transgender employees.

To avoid being another “test case” over the next year or into the future, an employer can proactively implement nondiscrimination policies that protect transgender employees from discrimination. Contacting an attorney with experience advising employers on their obligations to prevent discrimination in the workplace is the safest and most effective way to ensure that the employer complies with applicable laws and creates the most hospitable environment for all employees. Creating a corporate culture that welcomes and supports diverse employees will foster a more productive environment that will benefit from diverse experiences and contributions. This same culture will also open up new opportunities for growth as a diverse workforce is able to make more connections with customers and colleagues who share similar experiences as those employees engaged by welcoming employers.

Keeping the foregoing information in mind, you may wonder what employers should do to protect transgender employees. Imagine that you return to your office on a Monday morning. You turn on your computer and read an email from human resources informing you that an employee revealed that he or she is transgender and intends to transition. If you have not faced this situation before, you may be unsure of how to proceed and should seek assistance from outside counsel who focuses on employment issues and has worked with companies on gender transitions. Outside counsel serves an important, neutral role in assisting in-house counsel, human resources, and the transgender employee as all parties navigate the employee’s workplace transition. After working with outside counsel, consider taking the recommendations outlined below as initial steps toward supporting a transgender employee.

First, work with human resources to communicate to the transgender employee that the company supports him or her and will ensure compliance with the company’s harassment and nondiscrimination policies.

Second, develop a Gender Transition Plan (“GTP”) with guidance from outside counsel and the employee. Include information regarding how the employee would like to address his or her transition in the workplace.

Third, ask the employee how he or she would like to communicate with coworkers and managers regarding the transition so that the employee feels comfortable, supported, and protected in the workplace.

Fourth, identify an individual who is best suited to oversee the GTP and check in with the transgender employee to ensure that his or her needs and concerns are addressed in a timely, respectful manner. This individual should not be the employee’s manager. Consider asking a human resources professional or an ombudsperson to fill this role.

Fifth, once the GTP is finalized, communicate with other employees and remind them of their obligations to adhere to the company’s harassment and nondiscrimination policies.  Consider holding additional training sessions on the policies so that employees are more aware of their responsibilities.

The preceding recommendations provide a brief introduction to the steps that employers should take to support transgender employees, while educating their entire workforces on their responsibility to respect one another and foster a culture that welcomes individuals with diverse experiences and backgrounds. The recommendations are not exhaustive, and employers must consider additional topics, including a transgender employee’s preferred pronouns, preferred name in the absence of a legal name change, and preferred restroom facilities. By addressing these topics with the employee, your company demonstrates its willingness to support and assist the employee through his or her transition.

In addition to working with the transgender employee on his or her transition, the GTP should address what steps the company will take to educate other employees, including employees who work with the transgender employee, on the transition process, the company’s harassment and nondiscrimination policies, and what steps the company plans to take to ensure that all employees, including its transgender employees, are respected and treated fairly.

The individual(s) tasked with educating employees may wish to hold training sessions with groups of employees. Before holding training sessions, it is important to speak with the transgender employee and gather his or her input on the most comfortable and least intrusive way to share the transgender employee’s very personal decision to transition in the workplace, while ensuring that other employees understand their role in creating and perpetuating a positive workplace culture. The transgender employee may wish to participate in the trainings and be available for questions, or he or she may request a different way to communicate with other employees.

In the unfortunate event that human resources or a manager learns that the transgender employee is the subject of harassment or mistreatment, the employer must immediately investigate and enforce its harassment and nondiscrimination policies, like the company would do if it received allegations of sexual harassment. All employees, regardless of their sexual orientation, are entitled to respect in the workplace.

The law on protections for transgender employees will remain unsettled for at least one more year. Regardless of how the U.S. Supreme Court inevitably rules, employers can proactively foster a workplace culture that emphasizes the benefits of diversity, whether it is based on race, ethnicity, gender, sexual orientation, veteran status, or other traits that ultimately lead to success for individual employees and for companies as a whole.