Bruce Jenner’s transition to Caitlyn has people buzzing. More employers are facing questions about transgender employees than at any time in the past, and answers to these questions have recently become more complicated.
Title VII of the Civil Rights Act of 1964 prohibits employment discrimination on the basis of sex. Title VII does not specifically extend workplace protections to gay, lesbian, bisexual or transgender individuals. For a number of years, some members of Congress have attempted to amend Title VII to provide protections to these categories of individuals. This effort has been through the so-called Employment Non-Discrimination Act (ENDA). However, ENDA has not been passed into law.
A majority of federal courts that have addressed the issue of whether discrimination against a transgender employee is illegal under Title VII have determined that it is not. However, some federal courts have held that a transgender individual does enjoy employment protections under Title VII.
Late in 2014, the U.S. Equal Employment Opportunity Commission instructed its investigators and attorneys “that discrimination against an individual because that person is transgender is a violation of Title VII’s prohibition of sex discrimination in employment.” Since that time, the EEOC has been filing complaints and reaching settlements with some private employers in gender identity cases.
Last year, President Obama issued Executive Order 13672, which added gender identity to the list of protected classifications for federal contractors and subcontractors. It is now clear that federal contractors and subcontractors are prohibited from discriminating against transgender employees and applicants.
It is not so clear whether other private sector employers are barred from taking employment actions against individuals because of their transgender status. According to most federal courts, there is no such prohibition in Title VII. According to the EEOC, though, such a prohibition is contained in that law. Until and unless ENDA is enacted into law or there is a decision from the United States Supreme Court, we have conflicting guidance from the courts and the EEOC.
This leaves private sector employers who are not federal contractors or subcontractors in a quandary. There is currently a greater likelihood that the EEOC will accept and process transgender discrimination complaints and find violations of Title VII. However, in most courts, it will be determined that transgender plaintiffs are not protected by Title VII.
A number of states and cities have added gender identity or expression as a protected status under human rights laws and ordinances. Former Michigan governor Jennifer Granholm signed an executive order banning discrimination in state employment based on gender identity or expression. Accordingly, employers need to be aware of the communities in which their employees work and whether there is a local law or ordinance extending protection.
Some employers are acting on the assumption that the EEOC’s position will ultimately prevail and that transgender employees and applicants will be protected by Title VII. Because of the uncertainty and the existence of local, state and federal law considerations, employers facing questions about the protected status of transgender individuals should proceed carefully.