Protection of Transgender Employees Against Sex Discrimination: More Than Bathroom Access Rights

The United States Equal Employment Opportunity Commission has published a new Fact Sheet on the bathroom access rights for transgender employees.  The EEOC’s position is straightforward and easily understood.  However, employers and employees in North East Ohio would be seriously mistaken if they assumed that their respective rights and obligations ended at the bathroom.  Rulings by the EEOC and various federal courts offer broad protections to transgender employees under Title VII of the Civil Rights Act of 1964.

As the EEOC’s Fact Sheet points out, “‘Transgender’ refers  to people whose gender identity and/or expression is different from the sex assigned to them at birth.”  An individual does not need to undergo any medical procedure or surgery to be considered a transgender man or woman.   The EEOC’s rules are consistent with its 2015 decision in Lusardi v. Dep’t of the Army  and state that an employer cannot (1) deny an employee equal access to a common bathroom corresponding to that employee’s gender identity; (2) condition the employee’s right to bathroom access on the employee’s undergoing or providing proof of surgery or any other medical procedure; or (3) segregate a transgender employee by requiring him or her to use a single-user bathroom or restroom.  The EEOC considers an employer’s failure to provide transgender employees with these rights to bathroom access to be sex discrimination.  Contrary state laws as well as supervisory or co-worker “confusion or anxiety” are not defenses to a claim of sex discrimination based on the denial of bathroom access rights.

The rights of transgender employees to be free from discrimination in their workplace are much broader than bathroom access rights.  Just ask Ellucian, a higher education technology services company, that removed an employee from her workplace on a college campus the day after she told her co-workers  that she planned to transition from male to female.  Ellucian took this action at the request of the college where the employee had been assigned.   After the EEOC’s investigation, Ellucian agreed to pay $140,000.00 to the employee, revise its code of conduct to add gender identity as a protected basis in its anti-discrimination policy and report all requests made by clients to remove employees to the EEOC for a period of three years.

Any employer choosing to downplay the EEOC’s increasing body of administrative rulings finding that employers discriminated against transgender employees on the basis of sex does so at its own peril.  While the EEOC’s rulings are binding on it and other federal agencies, the courts are not bound by them.  However, in 1989, the United States Supreme Court’s 1989 issued its decision in Price Waterhouse v. Hopkins holding that discrimination based on “gender non-conformity” is sex discrimination.  Hopkins was not transgender.  Rather, she was a woman who was denied partnership at the accounting firm.  When she met with the managing partner about her denial to partnership, he told her “to walk more femininely, talk more femininely, dress more femininely, have her hair styled, and wear jewelry.”  Since then a number of courts have applied the gender nonconformity analysis to rule in favor of transgender employees on the basis of sex discrimination.  Over time states, municipalities and other local governments have enacted laws prohibiting discrimination based on gender identity.

In light of this growing movement, the better pathway for employers is to review their handbooks, policies and practices and update their anti-discrimination and anti-harassment polices as well as policies concerning bathroom access, appearance and dress code, for example, to eliminate possible gender identity bias.  Just as important, employers should provide training to all employees, management and staff alike, on these issues.  Finally, employers should proactively consider how they will work together with transgender employees who are transitioning to optimize their success and acceptance in the workplace.