Transgender Discrimination in the Workplace

Employment Discrimination on the Basis of Gender Identity
Transgender employees often face very severe discrimination in the workplace based on their gender identity or gender expression. This type of discrimination can include a wide spectrum of offensive conduct, such as intra-office speculation and false rumors about a transgender employee’s gender identity. It can even extend to severe harassment as well as physical or sexual assaults.

Several states explicitly prohibit gender identity discrimination using one of three general approaches. Certain states, like Iowa and New Mexico, have enacted laws that explicitly include gender identity as a protected characteristic. Other states, such as Colorado and Minnesota, prohibit sexual orientation discrimination, and gender identity is included within the statutory definition of sexual orientation discrimination. California protects transgender employees from workplace discrimination by including gender identity or expression within the statutory definition of sex for purposes of its anti-discrimination laws.

While federal law does not explicitly prohibit gender identity discrimination, the EEOC has issued an opinion that employers that discriminate on the basis of gender identity are violating the prohibition against sex discrimination under Title VII of the Civil Rights Act of 1964. This opinion was delivered in connection with the case of a transgender woman who was denied federal employment once an agency learned she had undergone a transition. Although it is an EEOC opinion or decision, the federal judicial trend is towards finding that gender identity discrimination is a form of sex discrimination, which is prohibited under Title VII and certain constitutional guarantees.

Disparate Treatment and Disparate Impact
Under traditional analyses of sex discrimination under Title VII, both policies and practices involving disparate treatment and disparate impact are prohibited. Disparate treatment cases are those that involve intentionally discriminatory conduct by an employer. Disparate impact cases are those that involve a facially neutral employment policy or practice that nonetheless has a disproportionate effect on a group with a protected characteristic.

Based on the EEOC opinion and federal judicial trends, it is likely that employers who intentionally discriminate against transgender employees will run afoul of the prohibition against disparate treatment on the basis of sex. For example, it is likely that sex discrimination in violation of Title VII exists when a hiring manager refuses to hire a transgender employee on the grounds that he or she will not fit the “culture” of the workplace. Similarly, there may be unlawful sex discrimination when a factory rejects a job application from a transgender man because he does not fit the hiring manager’s sense of what a man should be like; this is often argued as a form of illegal sex stereotyping.

Examples of disparate impact could include strict rules about which gender can use each bathroom at a company. This could create an uncomfortable situation for transgender employees. In that case, it might be appropriate for the employee to ask for an accommodation to use the bathroom of the gender with which the employee identifies, even if this is not the bathroom that the employer believes is appropriate. An employer can deny an accommodation, however, if it causes an undue hardship.

Harassment on the basis of gender identity is also prohibited as a form of sex discrimination under Title VII. Harassment is offensive conduct that is so severe and pervasive that it creates a hostile workplace or results in an adverse employment decision, such as demotion, firing, or reassignment to a less prestigious position.

For instance, a transgender person might mention to her supervisor that she is taking hormones and intends to transition. If she is insulted and eventually fired, she may have a claim under Title VII for harassment and wrongful termination. Similarly, an employee who is fired because his transition is seen as “unnatural” may bring a claim.

Congress and state legislatures sometimes revisit employment laws to assess whether they adequately balance the interests of employers and employees. Accordingly, the federal and state laws related to gender identity discrimination may change.

What You Should Know About EEOC and the Enforcement Protections for LGBT Workers

Transgender Law Center Legal and Policy Work

Discrimination is a major contributor to the tremendously high rates of unemployment and underemployment faced by transgender and gender nonconforming people. Transgender Law Center supports working people in their efforts to get and stay employed no matter how they express their gender. By helping people who face discrimination on the job and through partnerships that help people find jobs, we are advocating for better legal protections for workers who don’t fit into narrow gender stereotypes.

Transgender Law Center combats workplace discrimination by providing information about the law, as well as about how to file a discrimination complaint with state, federal, and local agencies. We work to improve local, state, and federal policies affecting transgender people at work. We also provide “know your rights” trainings to transgender employees and job-seekers. We educate employers about their legal obligations to create workplaces free from discrimination and harassment. When possible, we also represent transgender employees who have been discriminated against at work or while applying for a job.

Transgender Law Center is also proud to be a partner in the Transgender Economic Empowerment Initiative (TEEI), a collaboration between Transgender Law Center and the San Francisco LGBT Center, TEEI is the nation’s first coordinated program to transform the economic health of transgender communities by turning around the high rates of unemployment and creating stability for transgender people and their families. TEEI links employees with employers, provides support and skills building for job seekers and newly placed employees, and supports employers to create truly trans-inclusive workplaces. Find out more at www.teeisf.org.

Legal Cases

Lusardi v. Department of the Army (Federal)
Department of Fair Employment and Housing vs. American Pacific Corporation (California)
Macy v. Bureau of Alcohol, Firearms, Tobacco, and Explosives (Federal)
Groundbreaking case establishes employers cannot discriminate against transgender people
Ashley Yang v. Transportation Security Administration (Federal)

Policy & Advocacy

Transgender Law Center is at the forefront of changing laws, policies and attitudes affecting transgender people at work.

On the federal level, we have worked on passage of the Equality Act, federal legislation that would protect LGBT people from discrimination in many sectors of life, including employment, education, public accommodations, and housing. You can read more about the Equality Act here.

In California, we helped pass the Gender Nondiscrimination Act of 2003 (AB 196), which ensured that transgender and gender nonconforming people in California have legal protection from employment discrimination. In 2011, we passed the Gender Nondiscrimination Act, which further clarified that we are all protected from workplace discrimination based on our gender identity and expression. You can read more about California’s Gender Nondiscrimination Act here.

In the coming years, we are working to advance protective laws and policies to make sure that transgender people can work as our full, authentic selves. This means being able to express our genders freely, having equal access to restrooms, having access to equal workplace benefits, including health care benefits and being free from harassment.

There are many ways to get involved in our work combating employment discrimination. Share your story with us so we can use it in our advocacy by emailing us.