As the Department of Justice, EEOC, and OFCCP Determine That Transgender Discrimination is an Actionable Form of Sex Discrimination, Employers Should Take Steps to Avoid Facing Such Claims

Attorney General Eric Holder recently announced the Department of Justice’s official position that Title VII’s definition of unlawful sex discrimination includes discrimination based on gender identity and transgender status.  According to the DOJ, Title VII ‘s prohibition against discrimination “because of” an employee’s sex must – under the plain meaning of those words – encompass discrimination based on any sex-based consideration, including an employee’s gender identity or status as transitioning to a new gender.

The DOJ’s announcement (an about-face from its assertions in past litigation) is part of a growing administrative and legislative trend.  As we noted in an earlier blog post, the EEOC’s Strategic Enforcement Plan includes coverage of lesbian, gay, bisexual and transgender individuals under Title VII’s sex discrimination provisions as a top enforcement priority.  To that end, the EEOC recently brought two separate federal discrimination lawsuits against private employers that terminated employees after they began the gender transition process.  And the OFCCP recently issued a Directive on Gender Identity and Sex Discrimination, which set forth the OFCCP’s intention to interpret Title VII’s sex discrimination provision in tandem with the EEOC – that is, as inclusive of transgender and gender identity discrimination.  Moreover, eighteen states, as well as local municipalities in other states, have enacted legislation prohibiting private employers from discriminating against individuals based upon their gender identity.

The lawsuits brought by the EEOC involve employers that terminated transgender employees after they began presenting as members of the opposite sex – perhaps the most obvious form of discrimination.  But employers should be aware of other potential forms of transgender discrimination, including denying a transgender employee’s request to use a particular restroom or denying a transgender employee’s name change request.  In addition, an employer might incur liability by denying an employee’s request for an accommodation to undergo treatment for a gender identity disorder; while such disorders are not considered disabilities under the Americans with Disabilities Act, they may be covered under broader state and local disability laws.

In addition to updating equal employment and anti-discrimination policies, and including gender identity issues in diversity training, there are several steps employers can take to avoid transgender and gender identity discrimination claims.

• Revise dress code policies to eliminate any gender-based stereotypes (i.e., men should wear suits, women should wear dresses), and to make clear that dress code guidelines do not apply off-duty.

• Ensure that employees are not denied benefits based on their transgender or transitioning status, and that spouses, children, step-children, and domestic partners of transgender employees receive benefits in accordance with applicable laws.

• Review recruitment, application, and hiring processes to address any indications of disparate impact or treatment of transgender applicants.

• Update all sick time and family and medical leave policies to comply with applicable state and local ordinances, which may have a broader reach than the FMLA (by protecting an employee’s right, for example, to take sick time or a leave of absence to care for a domestic partner).

Many believe that 2015 will be a watershed year for the advancement and enforcement of transgender employees’ rights.  Employers can and should proactively take steps to manage these workplace issues.