Counsel’s Corner: Sex Discrimination Covers Gender Identity

Disclaimer: This document and any discussions set forth herein are for informational purposes only, and should not be construed as legal advice, which has to be addressed to particular facts and circumstances involved in any given situation. Review or use of the document and any discussions does not create an attorney-client relationship with the author or publisher. To the extent that this document may contain suggested provisions, they will require modification to suit a particular transaction, jurisdiction or situation.

Colt Catlin
TPM Attorney

Title VII of the 1964 Civil Rights Act protects gay and transgender workers from job discrimination. Some federal laws that prohibit sex discrimination rely on Title VII’s definition of “because of sex”, which includes gender identity. Additionally, in a growing number of state and local jurisdictions, transgender status has been recognized and defined as part of anti-discrimination laws banning gender discrimination.

Background

The term “transgender” refers to persons whose gender identity and/or expression is different from the sex assigned to them at birth (e.g., the sex listed on an original birth certificate). The term transgender woman typically is used to refer to someone who was assigned the male sex at birth but who identifies as a female. Likewise, the term transgender man typically is used to refer to someone who was assigned the female sex at birth but who identifies as male. A person does not need to undergo any medical procedure to be considered a transgender man or a transgender woman.

Title VII of the Civil Rights Act of 1964 and Transgender Individuals

  • In addition to other federal laws, the EEOC enforces Title VII of the Civil Rights Act of 1964, which prohibits employment discrimination based on race, color, national origin, religion, and sex (including pregnancy, gender identity, and sexual orientation). Title VII applies to private and state and local government employers with 15 or more employees, as well as to federal agencies in their capacity as employers. Like all non-discrimination provisions, these protections address conduct in the workplace, not personal beliefs. Thus, these protections do not require any employee to change beliefs. Rather, they seek to ensure appropriate workplace treatment so that all employees may perform their jobs free from discrimination. Contrary state or local law is not a defense under Title VII. 42 U.S.C. § 2000e-7.
  • In Bostock v. Clayton County, Georgia, No. 17-1618 (S. Ct. June 15, 2020), the Supreme court ruled that discrimination based on transgender status is sex discrimination in violation of Title VII.
  • In Lusardi v. Dep’t of the Army, EEOC Appeal No. 0120133395, 2015 WL 1607756 (Mar. 27, 2015), a federal sector appeal, the EEOC held that:
    • a federal agency that denied an employee equal access to a common bathroom/facility corresponding to the employee’s gender identity discriminated on the basis of sex;
    • the agency could not condition this right on the employee undergoing or providing proof of surgery or any other medical procedure; and
    • the agency could not avoid the requirement to provide equal access to a common bathroom/facility by restricting a transgender employee to a single-user restroom instead (though the employer can make a single-user restroom available to all employees who might choose to use it).

Best Practices for Preventing Sexual Harassment

Define the Term “Harassment

  • The Equal Employment Opportunity Commission’s Select Task Force defined the term “harassment” as conduct that is:
  • “unwelcome or offensive,”
  • based on gender (or a protected class), and
  • detrimental to an employee’s work performance, professional advancement, and/or mental health.
  • Certain conduct isn’t acceptable even though the conduct may not be unlawful.
  • Given the different definitions and uses of the term “harassment,” company management should be careful as to their communications in response to a complaint under the company’s policy.
  • Train managers to refrain from calling a complaint a “harassment” complaint or from concluding that an employee engaged in “harassment.”
  • If the company determines that improper or offensive conduct occurred:
    • document it as a violation of company policy, and
    • take proportional corrective action, as well as steps to ensure that no retaliation occurs.

Examine the Workplace Culture

  • Ensure the culture doesn’t serve as a breeding ground for unacceptable conduct.
  • Is there proactive leadership and commitment by top executives?
  • Are all employees treated with civility and respect?
  • Is profanity or crude conduct condoned?
  • Is management held accountable for their own conduct as well as the conduct of those persons they supervise?
  • Employees must be held accountable to comply with the stated EEO policies and commitment.
  • Executive leadership must send a clear message with its actions that offensive conduct in the workplace isn’t acceptable.

Review the Harassment Policy

  • Don’t dust off the employee handbook every few years, and then update it quickly; conduct a fresh evaluation of policies and processes.
  • Emphasize in the harassment (and social media) policies that the company’s EEO policies are equally applicable to an employee’s social media use.

Take Steps to Train Managers and Employees

  • Per the EEOC Special Task Force Report: “training is an essential component of an anti-harassment effort.”
  • Training should not simply focus on “legal compliance” and should not be a “canned, ‘one size fits all’” approach.
  • Engage live trainers who are “dynamic, engaging and have full command of the subject matter.”
  • Consider expanding the training to establish expectations of “civility and respect” in the workplace.
  • Ensure that employees will have ready access to your policies and complaint process.
  • Strongly consider making the policies available online and/or accessible from a mobile device.