Focus: The transgender employees: guidance for employers

March 25, 2015

By Stephanie Cassman and Nabeela Virjee

Virjee Virjee
cassman Cassman

With the increased visibility of transgender people in the media, you’ve probably heard about Jazz Jennings, the 14-year-old activist who recently landed a show on TLC which will feature her family and how she deals with typical teen drama as a transgender individual. Or, you’ve spent a Saturday binge watching the Netflix hit “Orange is the New Black,” a show staring Laverne Cox, a transgender actress and LGBT advocate, who is the first openly transgender person to be nominated for an Emmy. It is refreshing to see trans people in the media as it reflects our growth and acceptance as a society for those who have been historically mistreated and underrepresented.

Because trans people have increased visibility, employers can no longer be ignorant to needs of transgender employees and the laws that protect them. Title VII of the Civil Rights Act of 1964 protects people from discrimination based on gender non-conformity. In Price Waterhouse v. Hopkins, 90 U.S. 228, 235 (1989), the United States Supreme Court held that discrimination on the basis of gender stereotypes is sex-based discrimination under Title VII. Title VII basically prohibits employers from discriminating against employees for “failing to act and appear according to expectations defined by gender.” Glenn v. Brumby, 663 F.3d 1312, 1316 (11th Cir. 2011) (“The very acts that define transgender people as transgender are those that contradict stereotypes of gender-appropriate appearance and behavior … there is thus a congruence between discriminating against transgender and transsexual individuals and discrimination on the basis of gender-based behavioral norms.”).

In 2012, the Equal Employment Opportunity Commission ruled that discrimination against an individual because that person is transgender is discrimination because of sex and therefore prohibited under Title VII of the Civil Rights Act of 1964. See Macy v. Department of Justice, EEOC Appeal No. 0120120821 (April 20, 2012). In 2014, the EEOC began filing LGBT-related lawsuits challenging alleged sex discrimination under Title VII. Each case alleges that the defendant-employer discriminated based on sex when it fired an employee because she was transgender; was mid-transition; and/or did not conform to the employer’s gender-based expectations, preferences or stereotypes.

The U.S. Office of Personnel Management has issued guidance regarding the employment of transgender persons in the federal workplace. This guideline provides a framework that is instructive for private employers, too, to react appropriately to issues that might arise with trans employees in the workplace.

Confidentiality and discretion: An employee’s transition must be treated with as much sensitivity and confidentiality as would apply to other personnel challenges of employers such as health issues, marital issues, substance abuse or other concerns related to employees. It is understandable that fellow coworkers will have questions regarding the trans employee; however, an employer should do its best to limit questions that may cause feelings of harassment. Other employees should only be given general information about the trans employee’s transition. Personal information about the employee should be considered confidential and should not be released without the employee’s prior consent.

Restroom facilities: Occupational Safety and Health Administration guidelines require agencies to make access to adequate sanitary facilities as free as possible for all employees. For a transitioning employee, this means that once he or she has begun living and working full-time in the gender that reflects his or her gender identity, the employer should allow equal access to restrooms and locker room facilities consistent with his or her gender identity. Transitioning employees should not be required to have undergone or to provide proof of any medical procedure in order to have access to facilities designated for use by a particular gender. Employers may not require the employee to use facilities that are unsanitary, unsafe or located unreasonably far from the employee’s workstation.

Dress and appearance: Once an employee has informed management that he or she is transitioning, the employee will begin to wear the clothes associated with the gender to which the person is transitioning. Dress codes should be applied to the transitioning employee as they would apply to other employees of that gender. Dress codes should not be used to prevent a transgender employee from living full time in the role consistent with his or her new gender identity.

Names and pronouns: Managers and coworkers alike should use the name and appropriate pronouns for the employee’s new gender. Employee records and communications to others regarding the employee should use the correct name and pronouns as well. Continued intentional misuse of the employee’s new name and references of his or her former gender can be the basis of a discrimination or harassment action.

Insurance benefits/recordkeeping: Employees who are already receiving insurance benefits should be allowed to continue their participation and new employees should be allowed to participate in their new names and genders. Transitioning should not affect the insurance coverage of validly married employees and their spouses.

Employers often state they do not know what to say or how to act around transgender employees. Below are some basic tips from LGBT-acceptance group GLAAD for interacting with transgender people generally that should be followed by employers:

Don’t make assumptions about a transgender person’s sexual orientation

If you don’t know what pronoun to use, ask

Know that you can’t tell if someone is transgender just by looking

Be careful about confidentially, disclosure and “outing”

Avoid backhanded compliments (ex. “You look just like a real man” or “I would have never known you were transgender; you look so pretty.”)

Respect the terminology a transgender person uses to describe his/her identity

Understand there is no “right” or “wrong” way to transition – and that it is different for every person

Don’t ask a transgender person what their “real name” is

Don’t ask about a transgender person’s genitals or surgical status

Do challenge anti-transgender remarks or jokes in public spaces

Employers must take the initiative to make their workplaces trans-equal, inclusive and accepting in order to avoid liability under expanding employment laws.•


Stephanie L. Cassman and Nabeela Virjee are attorneys at Lewis Wagner LLP. Together, they concentrate their practice in employment litigation defense. Stephanie’s email is scassman@lewiswagner.com and Nabeela’s email is nvirjee@lewiswagner.com The opinions expressed are those of the authors.