Transgender Employees and Employment Discrimination

By on June 18, 2018

Executive Summary of an article written by
Alison Nadel and Natalie Colvin, McDermott Will & Emery

Title VII prevents employers from discriminating against employees based on “sex” — a term with no statutory definition and no legislative history. Following that statute’s passage in 1965, courts held that Title VII does not protect against discrimination on the basis of gender identity, distinguishing discrimination based on “gender” from discrimination based on “sex.” However, the tide appears to be turning. More courts are taking a broader view of what constitutes “sex” discrimination under Title VII.

For employers operating nationally, it is impracticable to attempt to have separate corporate policies for categories of discrimination depending on the relevant circuit, state and local laws. Employers should evaluate their policies and practices with transgender employees and gender identity issues in mind, and consider the following: including gender identity and gender expression as protected classes under anti-discrimination and anti-harassment policies; framing dress code, appearance and makeup policies for neatness rather than as a code to enforce traditional sex stereotypes; providing guidance on use of employees’ preferred pronouns and names in the workplace, and in related record keeping; and preparing transition plans for employees undergoing transition.

A common issue that arises regarding transgender rights is bathroom access. A prudent course for employers is to permit all employees to use bathrooms consistent with their gender identity. Where possible, employers should also consider offering single-occupancy, gender-neutral bathrooms for any individual seeking additional privacy, but not require transgender individuals to use those facilities.

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