Transgender Employees in the Workplace

March 23, 2017

Michael C. Harrington

860.240.6049 │ mharrington@murthalaw.com

Setting the Stage:

Case Study – Late 1960’s/1970’s

• Lynn was born and raised as a boy. However, she identified as a girl.

• In the 1960s, when she worked at IBM, she presented as a male.

• While at IBM, Lynn invented a method by which computer processors make

multiple calculations simultaneously leading to the creation of

supercomputers that can take enormous amounts of data and compile them

to look for patterns.

• Just before Lynn underwent sex reassignment surgery in 1968, she was

fired by IBM for being transsexual and lost all connections to her important

work there.

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Setting the Stage:

Case Study – Late 1960’s/1970’s • In the 1970s, Lynn worked for Memorex Corp. where her innovations influenced

chip design worldwide.

• Lynn has since won many awards and high honors, including election as a member

of the National Academy of Engineering (highest professional ranking an engineer

can receive).

• Lynn is now a Professor of Electrical Engineering and Computer Science, Emerita,

at the University of Michigan in Ann Arbor, where she also served for many years

as Associate Dean of Engineering.

• In 2002, IBM added the terms “gender identity or expression” to its anti-

discrimination policy. 3

How Things Have Changed:

2017 Corporate Equality Index (CEI) Statistics

• In 2002, the Human Rights Campaign Foundation launched the CEI, which

assesses LGBT-inclusive policies and practices at Fortune 500 companies.

• In 2017, 887 companies and firms were officially rated:

517 businesses earned CEI’s top score of 100, up from 407 in 2016

(increase of 25%).

92% include both sexual orientation and gender identity non-

discrimination protections for workers domestically and internationally.

93% adopted sexual orientation equal employment policies for U.S. and

global operations.

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• 93% have gender identity equal employment policies for U.S. and

global operations.

• 98% have benefits from same-sex domestic partners or spouses.

• 73% offer transgender-inclusive healthcare coverage (up from 60%

last year).

2017 Corporate Equality Index (CEI) Statistics

5

Terms • Gender Identity: A person’s internal sense of being male, female, or something

else.

• Gender Expression: How a person represents or expresses one’s gender identity

to others (behavior, clothing, hairstyles, voice, body characteristics, etc.).

• Gender Non-Conforming: A term for when a person’s gender expression is

different from societal expectations.

• Gender Dysphoria: (f/n/a Gender Identity Disorder) Clinical significant distress

caused when a person’s assigned birth gender is not the same as the one with

which they identify.

• Non-Binary or Agender: A term used by people who identify as neither entirely

male or female. 6

Terms

• Bigender: Someone who identifies as both a man and woman.

• Sexual Orientation: A person’s sexual and emotional identity in relation to the

gender to which they are attracted.

• Transgender: A broad term for people whose gender identity, expression or

behavior is different from those typically associated with their assigned sex at birth.

• Transgender Man: A term for a transgender person who identifies as a man.

• Transgender Woman: A term for a transgender person who identifies as a woman.

Interesting Fact: Facebook has 51 gender options. 7

Legal Protections

• Federal Law protects against discrimination/harassment based upon

an individual’s “sex.”

• State Law varies: May protect against discrimination/harassment

based upon an individual’s “sex,” their “sexual orientation,” and/or

their “gender identity.”

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Federal Law on Transgender Inclusion

• No federal law consistently protects transgender employees from discrimination.

• Discrimination based on “sex” and disability have been argued as protection for

transgender employees under Title VII of Civil Rights Act of 1964 and the

Americans with Disabilities Act (ADA).

• Under Title VII, “sex” discrimination historically interpreted as excluding

transgender individuals as a protected class.

• However, since Price Waterhouse, most courts agree that it is unlawful to

discriminate against someone because they do not conform to traditional gender

stereotypes.

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Recent Federal Cases Macy v. Holde (2012)

Macy was highly qualified to be a ballistics officer with the federal Bureau of

Alcohol, Tobacco, Firearms and Explosives (ATF).

Macy was told after her initial phone interview that she was virtually guaranteed

a job with ATF, as long as she cleared a routine background check.

A few months later, Macy disclosed to her future employer that she planned to

transition from male to female.

Subsequently, she received an email stating that the position was no longer

available due to funding cuts.

However, a male was hired.

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Macy v. Holde continued

EEOC decision:

• Held that Macy was denied a job solely because of her gender identity.

• Transgender people are covered by a federal prohibition on sex-based

employment discrimination under Title VII.

Limited precedent, but clearly reflects the EEOC’s position.

In December 2014, DOJ announced that it will no longer assert that

“Title VII’s prohibition against discrimination based on sex does not

encompass gender identity per se.

Supreme Court could overturn this interpretation of “sex” discrimination.

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Glenn v. Brumby, 663 F.3d 1312 (11th Cir. 2011)

Plaintiff, a transgender female.

Brought a claim under 42 U.S.C. § 1983 alleging unlawful

discrimination based on sex in violation of the Equal

Protection Clause when she was terminated from her

position with the Georgia General Assembly.

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Glenn v. Brumby continued

On Halloween, when employee were allowed to come to work in

costume, Plaintiff came in as a woman.

A manager told Plaintiff her appearance was not appropriate and

asked her to leave.

The manager testified that it was “unnatural for a man to dress in

women’s clothing…would make coworker’s uncomfortable.”

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Glenn v. Brumby continued

The Appeals Court held:

– A person is considered transgender "precisely because of the perception

that his or her behavior transgresses gender stereotypes."

– As a result, there is "congruence" between discriminating against

transgender individuals and discrimination on the basis of "gender-based

behavioral norms."

– Because everyone is protected against discrimination based on sex

stereotypes, such protections cannot be denied to transgender individuals.

– "The nature of the discrimination is the same; it may differ in degree but

not in kind."

– Defendant provided no other justification for its action, and therefore, the

plaintiff was entitled to summary judgment.

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Roberts v. Clark County School District (D. Nev. 2016)

Plaintiff, a transgender male police officer.

Plaintiff was told that he would not be referred to as a man or allowed to use the

men’s restroom until he provided documentation of name and sex change.

Plaintiff was prohibited for using either gender’s restroom.

• Plaintiff was banned from women’s room because he did not act like a

woman.

• No evidence that any employees had concerns.

Subsequently, a department wide email was sent informing the department that

Plaintiff was changing.

• Plaintiff was “blindsided.”

• Plaintiff thought only supervisors and managers would be told.

Summary judgment granted in favor of Plaintiff.

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Radtke v. Union Health and Welfare Fund (D. Minn. 2012)

• Plaintiff, a transgender female.

• Underwent sex-reassignment surgery.

• Changed birth certificate.

• Married.

• Had health insurance through husband.

• Gel breast implants ruptured … needed surgery.

• Insurance carrier somehow heard of Plaintiff’s “transgender status” and

challenged Plaintiff’s marital status.

• Judgment entered in favor of Plaintiff.

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Finkle v. Howard County Maryland (D. Maryland 2014)

• Plaintiff applied to be volunteer auxiliary police officer.

• Transitioned from male to female.

• Court held because of benefits received volunteer was employee for Title

VII.

• Denied Defendant’s motion to dismiss/summary judgment.

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Schroer v. Billington (D.D.C. 2008)

Plaintiff, a transgender female.

Plaintiff applied to be Specialist in Terrorism and International Crime with

Congressional Research Service with Library of Congress.

Presented in initial interview as male.

• Received highest interview score and was offered a job.

Plaintiff discussed she was about to begin presenting herself as woman on full-

time basis…wanted to start job as a woman.

Employer commented: “Why in the world would you want to do that?”

Rescinded offer.

Court found Library’s stated reasons were pretextual and that Plaintiff was

discriminated against.

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Lopez v. River Oaks Imaging & Diagnostic Group (S.D. Texas 2008)

• Plaintiff, a transgender female.

• Applied as a scheduler.

• Offer rescinded because Plaintiff “misrepresented” herself as a female

during interview (direct eviction).

• Claim survived Defendant’s motion for summary judgment.

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Barnes v. City of Cincinnati, 401 F.3d 729 (6th Cir. 2005)

Plaintiff, a transgender female.

Plaintiff was living as a male while on duty but often lived as a woman off duty

[and] had a reputation throughout the police department as a homosexual,

bisexual or cross-dresser.

Vice squad had photographed plaintiff at night.

Plaintiff was told he was not sufficiently masculine.

Plaintiff alleged he was demoted because of his failure to conform to sex

stereotypes.

The court held that this stated a claim of sex discrimination under Title VII.

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Smith v. City of Salem, 378 F.3d 566 (6th Cir. 2004)

Plaintiff, a transgender female and worked as a firefighter.

Plaintiff began to express a more feminine.

Peers said Smith was not masculine enough.

Plaintiff confided to his supervisor that he was transitioning and asked him not to

disclose to higher management; his supervisor.

Threatened Plaintiff with psychological evaluations.

After EEOC issued a right to sue letter, Plaintiff was suspended for an alleged

infraction.

• Held: Irrelevant that suspension was reversed…still could sue for retaliation

(rejecting ultimate employment decision doctrine).

Appeals Court held that Title VII prohibits discrimination against transgender

individuals based on gender stereotyping.

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Rosa v. Parks W. Bank & Trust Co., 214 F.3d 213 (1st Cir. 2000)

o Plaintiff, a transgender female.

o Citing Title VII case law, the Court concluded that a transgender plaintiff, who

was biologically male, stated a claim of sex discrimination under the Equal

Credit Opportunity Act by alleging that he was denied a loan application

because he was dressed in traditionally female attire.

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Other Cases

Doe v. City of Belleville, 119 F.3d 563 (7th Cir. 1997)

• Jewelry was considered too effeminate.

Nicholas v. Azteca Restaurant, 256 F.3d 864 (9th Cir. 2001)

• Carrying a serving tray too gracefully.

Knussman v. Maryland, 272 F.3d 625 (4th Cir. 2001)

• `Male taking too active of a role in child-rearing.

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Restrooms and Locker Rooms Federal EEOC/OSHA Guidelines

• Employee should use the facility of the gender with which they

identify.

• Proof of transition not required.

• Must be a sanitary, safe facility, located with reasonable distance

from workspace.

• Cannot force transgender employee to use single-sex facility unless

same rule for all employees.

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OSHA

• Employers must provide a safe and healthy working environment for

all employees

Sanitation Standard (1910.141)

• Provide toilet facilities

• Reasonable distance

• Prohibits restricting employees

• Prohibits segregating employees

Issued: June 1, 2015 25

Latest News

• Trump: It is the States’ right to decide transgender public school

student restroom issues

• Revokes Obama guidelines/which forced states to allow students to

use restroom consistent with their identity

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G.G. ex rel. Grimm v. Gloucester Cty. Sch. Bd., 822 F.3d 709 (4th

Cir. Apr. 19, 2016), mandate recalled and stayed, 136 S. Ct. 2442

(Aug. 3, 2016), cert. granted, 2016 WL 4565643 (Oct. 28, 2016)

Plaintiff, a transgender boy.

Title IX sex discrimination claim.

Title IX: No person shall, on the basis of sex, be excluded from participation in, be denied

the benefits of, or be subjected to discrimination under any education program or activity

receiving federal funds.

• Must treat transgender students consistent with their gender identity.

Title IX: Permits separate toilet, locker room and shower facilities on the basis of sex as

long as comparable.

• Under the Obama Administration, the U.S. Department of Education has issued

advice and its own sex discrimination regulation: "When a school elects to separate

or treat students differently on the basis of sex . . . a school generally must treat

transgender students consistent with their gender identity.“

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G.G. ex rel. Grimm v. Gloucester Cty. Sch. Bd., Continued

Plaintiff was denied access to the boys' restroom.

Plaintiff had used boys’ restroom without incident for 7 weeks.

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State Protection

• 20 states and D.C. prohibit discrimination against both public and

private employees based on sexual orientation and gender identity:

California, Colorado, Connecticut, Delaware, District of Columbia,

Hawaii, Illinois, Iowa, Maine, Maryland, Massachusetts, Minnesota,

Nevada, New Jersey, New Mexico, New York, Oregon, Rhode

Island, Utah, Vermont, and Washington.

• 2 states prohibit discrimination against public and private employees

based on sexual orientation only: New Hampshire and Wisconsin.

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Statewide Employment Laws & Policies on

Transgender Inclusion

• 7 states prohibit discrimination against public employees based on

sexual orientation and gender identity: Indiana, Kentucky, Michigan,

Montana, Pennsylvania, and Virginia.

• 5 states prohibit discrimination against public employees based on

sexual orientation only: Alaska, Arizona, Missouri, North Carolina,

and Ohio.

Source: HRC website Statewide Employment Laws & Policies

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Connecticut An Act Concerning Discrimination (October 1, 2011)

Conn. Gen. Stat. § 46a-51

General Scope

Prohibits discrimination based on “gender identity or expression” in employment, housing, and

public accommodations.

Gender-related identity must be sincerely held, part of core identity, and not asserted for an

improper purpose.

Evidence of sincerely held identity includes, but not limited to:

• Medical history, care or treatment of the gender-related identity, consistent and uniform assertion of the

gender-related identity or any other evidence.

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Connecticut

Fabian v. Hospital of Central Connecticut (D. Conn. March 2016)

Plaintiff is an orthopedic surgeon.

Offer made to Plaintiff when she presented as a male.

Informed employer that she was transitioning to a female.

Offer rescinded.

Defendant’s motion for summary judgment denied.

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Massachusetts

Massachusetts General Law ch. 151B, amended July 1, 2012

General Scope

• Prohibits discrimination based on gender identity in employment, housing, public schools,

lending, credit and mortgage services.

• Expands definition of “hate crime” to include criminal acts motivated by prejudice towards

transgender individuals.

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Massachusetts

Massachusetts General Law ch. 272 amended 2016

General Scope

• Places of public accommodation cannot discriminate against, or restrict, a person from

services because of that person’s gender identity.

• “Public Accommodation”:

“Any place, whether licensed or unlicensed, which is open to and accepts or solicits the

patronage of the general public.”

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Massachusetts

MCAD and Tinker v. Securitas Security Services USA, Inc. and Najeeb Hussain

(MCAD 2016)

Plaintiff, a transgender male security officer.

Plaintiff requested to be called by his new named and by the pronoun “he.”

Despite repeated requests, supervisor referred to plaintiff as “she” and his

former name.

Employer took no action.

Awarded $50,000 in emotional distress damages.

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Harassment Free Environment

Religion is Not a Defense

• Religious objections to gender transition are not a defense to

harassment. People are entitled to their opinions, but must comply

with the company’s anti-harassment policy, anti-bullying policy (if

have one), and, codes of conduct.

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Name Change

• Change name on payroll document when legally changed.

• Can change name of ID, office name place, etc. before.

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Names and Pronouns

• All other employees should use name and pronouns

appropriate to gender employee is presenting at work.

• Continued intentional misuse is contrary to goal of

treating all employees with respect and dignity.

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Dress and Appearance

• Draft gender neutral policies.

• Focus on professionalism and cleanliness, not

traditional male and female dress.

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Sick and Medical Leave

• Employees receiving treatment as part of transition may

qualify under FMLA or other sick leave policies.

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Best Practices

Do…

Use the names and pronouns desired by the employee.

Respect the transgender worker’s privacy.

• Treat LGBT issues as confidential.

• Disclose information on need-to-know basis.

Let the employee set the timetable for disclosing their transition – Know that employees

are not required to undergo transition.

Let the employee decide how to tell co-workers – in person, by e-mail or conference call,

individually, or in a group.

Watch for subtle forms of harassment, such as co-workers deliberately using the wrong

pronoun or excluding a transgender worker from meetings or events. 42

Do…

Evaluate benefits offered to employees and make sure to include LGBT

employees (consider even in states not mandated particularly if have multiple

sites in the US):

• Health care coverage

• Leaves of absence

• Disability-related benefits

• Domestic Partner and same sex spousal benefits

* Communicate that such benefits are available.

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Do…

• Review and update company policies and training:

EEO Statement

Anti-Harassment Policy

Code of Conduct

Dress and Grooming policies

Other HR policies and procedures

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Don’t…

Don’t assume a transgender person’s sexual orientation. Transgender people can be

straight, lesbian, gay or bisexual.

Don’t ask what someone’s “real” name is.

Don’t evaluate a transgender person by how successfully he or she conforms to

idealized or expected gender standards.

Don’t ask personal questions about a person’s medical or surgical history.

Don’t provide unsolicited “advice” on grooming and dress.

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Michael C. Harrington

860.240.6049 │ mharrington@murthalaw.com

Murthalaw.com

Questions?