In light of the recent passage of the so-called “bathroom bills” in North Carolina, which require certain facilities to restrict the use of bathroom facilities to the biological sex of individuals, it is clear that gender identity has become a legal issue that can affect the workplace in ways that may not have been anticipated. While the status of transgender discrimination laws is still in flux, it is important to understand a few basic legal issues that may arise in the workplace, with regard to this new legal dilemma.
How prevalent have gender identity claims become?
The EEOC reports receiving more than 270 claims of gender identity discrimination in the fiscal year 2015, a 28 percent increase from the previous year. This is a significant increase, despite being a small fraction of the more than 26,000 sex discrimination claims brought nationwide through the EEOC in 2015.
Has transgender discrimination in employment been ruled illegal?
Title VII of the Civil Rights Act of 1964 is the federal law that provides the most basic prohibitions against discrimination in employment based on sex, as well as several other protected characteristics. However, the question still remains definitively unanswered as to whether the prohibitions on “sex” discrimination includes discrimination based on gender identity. A few state and federal courts have rejected this particular interpretation.
As of now, the U.S. Supreme Court has yet to address the issue. Meanwhile, the Equal Employment Opportunity Commission (EEOC) has taken the position that employment discrimination based on gender identity is a form of sex discrimination and is therefore unlawful. Gender identity discrimination, at the hands of federal contractors and subcontractors, was ruled illegal under an Executive Order issued by President Barack Obama in 2014, which became effective in 2015.
What obligations do employers have towards transgender employees under the EEOC’s guidance?
The EEOC has identified a few specific obligations employers have towards their transgender employees with regard to bathroom access, the use of pronouns to refer to these employees, medical procedures, personnel records and harassment prevention.
No. 1 - Bathroom access
The EEOC has determined that it is unlawful for an employer to deny an employee access to a common restroom corresponding to that employee’s gender identity. This rule may conflict with a state’s “bathroom bill,” such as the one passed in North Carolina.
An employer is allowed to make a single-occupant restroom available to all employees. However, a transgender employee cannot be restricted the using only that restroom. There is a fine line here, though. While, the rule does not mean a man can enter and use a women’s restroom using “gender identity” as an excuse, if an employee lives and works full-time in accordance with his gender identity and has notified the employer, a bathroom restriction cannot be imposed, according to the EEOC.
No. 2 – Pronouns used in referring to employees
Coworkers and supervisors should be instructed to use the name and applicable pronoun that corresponds to the gender identity of the employee. Although certainly some mistakes are expected, as coworkers need to adjust to calling John, “Jane” after working for them for many years, persistently refusing to refer to an employee by her preferred name or pronoun can result in a hostile environment.
No. 3 - Personnel records
In a related situation, the EEOC has determined that it is unlawful for an employer to take an unreasonably long time to revise its personnel records to reflect a transgender employee’s new name and gender.
No. 4 - Medical procedure requirements
The EEOC has determined that employers are prohibited from requiring employees to have surgery or other medical procedures before they will be treated consistent with their gender identity. As the EEOC indicated in a related decision, “[g]ender reassignment surgery is in no way a fundamental element of a transition.”
If you feel you have been the victim of discrimination or retaliation, or if you have any questions regarding your employment rights, please contact Michel Allen & Sinor , either online or by calling us at (205) 265-1880.