Written on March 14th, 2017
A person’s “gender identity” – their deeply-felt, internal sense of being male, female, or something in between – may not always be consistent with their “gender assigned at birth”. As a result, they may appear or behave in a manner which is consistent with their gender identity but inconsistent with their gender assigned at birth. This may create HR issues in the workplace.
In the recent past, administrative agencies (e.g., the EEOC, the Dept. of Justice and the Dept. of Ed., Office for Civil Rights) and some courts have begun to interpret the phrase “because of sex” as that phrase is used in anti-discrimination legislation to include discrimination on the basis of gender identity.
Mr. Knudsen spoke to more than fifty Human Resources Managers from the Black Hills are regarding how this interpretation of the law has developed, how it is only now working its way through the courts to determine whether the interpretation is valid or not, and what businesses should be doing – what are the current “best practices” – in the event a transgender issue develops in its workplace. Read on for more information on this timely topic.
The origin of the recent interpretation which finds that discrimination laws protect transgender individuals can be traced to a United States Supreme Court decision issued in 1989. In the case of Price Waterhouse v. Hopkins, 490 U.S. 228 (1989), a female accountant was passed over for partnership. Her supervisor told her she might have a better chance if she would not swear so much, wear jewelry, dress more attractively and act more femininely. She brought suit under Title VII of the Civil Rights Act of 1964 alleging she had suffered illegal discrimination based on her sex – her gender.
The U.S. Sup. Ct. held that Title VII prohibits discriminating against an individual “because of” that person’s “sex”. Price Waterhouse, the court found, had discriminated against Hopkins because she didn’t behave the way a female is stereotypically supposed to behave. Since PW had rejected her partnership request because she didn’t meet its gender stereotype, PW had illegally discriminated against her “because of sex”.
Building on that case, the EEOC, the DOJ and the DOE-OCR have interpreted the phrase “because of sex” as used in Title VII (the Civil Rights law) and in Title IX (a law that prohibits sex-based discrimination in schools that receive federal funds) to include discrimination based on one’s gender identity. They reason that discrimination against a transgender individual because that person does not appear or behave consistently with the employer’s/school’s gender-based stereotypes is discrimination based on that person’s sex in violation of the law.
Those appointed to head the DOJ and the DOE under the Trump administration have withdrawn the interpretation of Title IX that holds it prohibits discrimination on the basis of gender identity. The DOJ and the Office for Civil Rights will no longer (at least during the Trump administration) threaten to withdraw federal funding from schools who insist that students use facilities (e.g., restrooms and locker rooms) consistent with their biological gender.
However, at least as of the date of this writing, the EEOC continues to maintain its stance that Title VII forbids discrimination in employment based on a person’s gender identity.
And keep in mind that states and local governments are free to enact their own laws so long as they don’t contradict federal law. In other words, even though the U.S. government says gender-identity discrimination doesn’t violate federal law, states or local governments may pass legislation to prohibit that very same discrimination. States can pass laws to give citizens greater protection than federal law provides.
So, at this time, employer’s who experience transgender issues in the workplace are well-advised to:
- Allow transgender individuals to use the restroom of their choice.
- Adopt company-wide policies prohibiting discrimination or harassment on the basis of gender identity, and procedures for seeking relief in the event anyone believes they are the victim of such discrimination or harassment.
- Train everyone in the workplace to call such individuals by the name they wish to be called, and to use the pronouns consistent with their gender identity when referring to them (e.g., a biological male who identifies as female (a transgender female) should be referred to as “she”, “her”, etc.).
- To the extent possible, revise any employment records to correspond to the person’s chosen name and gender identity. It may not be legal to alter some records (e.g., payroll records) unless the person legally changes his/her name.
- If others in the workplace are uncomfortable with the restroom/locker room arrangements, provide unisex facilities with individual stalls and locking doors to give them an alternative.
- Consult with legal counsel for guidance due to the fluid and evolving state of the law at this time.
The law on this topic is evolving by the minute. Changes in the federal administration and in the Supreme Court will undoubtedly influence how the law will develop in the near future. Additionally, Congress has the ability to amend the law to clarify whether transgender discrimination is discrimination “because of sex”. In the meantime, following the best practices outlined above is the safest way to avoid litigation. If you have questions regarding transgender issues in the workplace or other employment-related questions, contact Donald Knudsen at firstname.lastname@example.org or call 605-719-3419.
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