Transgender Protections in the Workplace

By on June 27, 2019

Executive Summary of an article written by
Trevor J. Hardy and Stephanie E. Harley, Ulmer & Berne LLP

Over the last 20 years, an influx of cases addressing transgender employment protections have made their way through federal district and appellate courts. Several appellate courts recognize that discrimination based on gender identity or gender transition violates Title VII of the Civil Rights Act of 1964 (CRA), which protects individuals from discrimination in employment; Title IX of the CRA, which protects individuals from discrimination in education; or the Equal Protection Clause of the United States Constitution.

In April 2019, the United States Supreme Court accepted three cases related to employment protections for LGBTQ individuals. A decision on these cases is expected in 2020. There is no way to know what the Court will do, and whether protections under Title VII or other laws will extend to transgender individuals. In the interim, employers are left to examine the law in their judicial circuit, state and locality.

Regardless of additional rulings, fostering a welcoming environment minimizes the risk of litigation to determine whether the jurisdiction in which an employer operates recognizes protections for transgender employees. The law on protections for transgender employees will remain unsettled for at least one more year. Regardless of how the United States Supreme Court rules, employers can foster a workplace culture that emphasizes the benefits of diversity, whether it is based on race, ethnicity, gender, sexual orientation, veteran status or other traits that ultimately lead to success for individual employees and for companies as a whole.

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