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Employers wrestling with transgender-related issues can take a few tips from the Feds

December 22nd, 2011  |  Pamela Wolf

Employers are having a tough time trying to figure out how to respond to the many issues surrounding transgender individuals in the workplace – transgender customers, transgender employees, and employees who are offended by gender nonconformity. What should employers do when a transgender individual seeks to use a fitting room, restroom or locker room consistent with his or her gender identity? The answers are far from clear, but guidance intended for federal employers has much to offer.

Earlier this month, a media storm erupted when Macy’s fired a female employee who advised a transgender male-to-female customer that the customer could not use the women’s filling room, an apparent violation of the giant retailer’s corporate policies. The employee, who is a Christian, defended her actions on religious grounds, citing her right not to ignore what she characterized as the customer’s “true” gender or to condone homosexuality. She also apparently believed the customer might subject other patrons to discomfort or danger by using the women’s fitting room. After hiring a Christian law firm, the employee filed a complaint with the EEOC.

It will be interesting to watch the development of this battle between religious and gender discrimination. But in the meantime, many employers are wondering what to do should similar circumstances arise – and feeling damned if they do, and damned if they don’t.

Religious accommodation? Arguably, a reasonable first step might have been to change the employee’s duties in an attempt to accommodate her religious sensibilities – perhaps assigning her to cashier, rather than fitting room duties. Of course, that may not have prevented the employee from being religiously affronted each time a transgender patron walked through the fitting room door. To allow the employee’s religious convictions so much sway as to permit her to prevent transgender patrons from using the fitting room consistent with their gender identity would likely not only cause the employer more than an undue hardship, it may also have given rise to liability for discrimination against patrons – an issue Macy’s had apparently encountered previously.

Battles such as these are likely to continue as employers increasingly face the question of how to deal with individuals who do not conform to gender stereotypes. A recent federal appeals court decision sheds some light on the question. Although it does not involve the religious discrimination issue encountered in the Macy’s case, it does address in the context of justification for bias, a similar issue – transgender employees using a restroom consistent with their gender identity.

Transgender employee wins sex bias claim. Just two days before the media frenzy over the Macy’s situation, the Eleventh Circuit Court of Appeals rendered an opinion in favor of a transgender state government employee who was discharged due to her gender nonconformity. The appeals court held that discriminating against someone on the basis of her gender nonconformity constitutes sex-based discrimination in violation of the Equal Protection Clause of the Fourteenth Amendment of the U.S. Constitution, ruling in favor of the male-to-female transgender employee on her claim that she was fired due to sex discrimination (Glenn v Brumby, December 6, 2011, Barkett, R).

When the employee was hired as an editor by the Georgia General Assembly’s Office of Legislative Council (OLC), she was presenting as a man. The head of the OLC, who was also the chief legal counsel for the OLC, was responsible for all personnel decisions.

In the year following her hire, the employee informed her direct supervisor that she was transgender and was in the process of becoming a woman. On the one occasion that the employee came to work presenting as a woman (on Halloween when OLC employees were permitted to come to work wearing costumes), the OLC head told her that her appearance was inappropriate and asked her to leave the office. The OLC head took no adverse employment action against her at the time, and in the following months she came to work presenting as a man.

The next year, she informed her supervisor that she was ready to proceed with her gender transition and would begin coming to work as woman. When the supervisor informed the OLC head, he told the supervisor that he was going fire the employee because of the gender transition and then did so.

The editor filed suit, alleging among others, a sex discrimination claim. A district court granted summary judgment in favor of the editor on this claim.

Gender stereotyping and equal protection. On appeal, citing the landmark case of Price Waterhouse v Hopkins, the Eleventh Circuit noted that the U.S. Supreme Court has held that discrimination on the basis of gender stereotype is sex-based discrimination. Applying the logic of that decision to the case at hand, the Eleventh Circuit reasoned that “[a] person is defined as transgender precisely because of the perception that his or her behavior transgresses gender stereotypes.” Thus, there is congruence between discriminating against transgender and transsexual individuals, and discrimination on the basis of gender-based behavioral norms, the court concluded.

The First, Sixth, and Ninth Circuits, as well as many district courts, have also held that discrimination against a transgender individual because of her gender-nonconformity is sex discrimination, whether it’s described as being on the basis of sex or gender, the Eleventh Circuit stated. Moreover, supported by citations to Fourth, Seventh and Ninth Circuit decisions, the court here pointed out that all persons, whether transgender or not, are protected from discrimination on the basis of gender stereotype. “Because these protections are afforded to everyone, they cannot be denied to a transgender individual,” the Eleventh Circuit wrote.

“Ever since the Supreme Court began to apply heightened [constitutional] scrutiny to sex-based classifications, its consistent purpose has been to eliminate discrimination on the basis of gender stereotypes,” the Eleventh Circuit noted. Accordingly, governmental acts based upon gender stereotypes must be subjected to heightened scrutiny (as are all other gender discrimination claims) because they embody the very stereotype the law condemns. “We conclude that a government agent violates the Equal Protection Clause’s prohibition of sex-based discrimination when he or she fires a transgender or transsexual employee because of his or her gender non-conformity,” the Eleventh Circuit wrote.

Termination. The court then turned to the issue of whether the editor was fired on the basis of her gender-nonconformity. The OLC head testified at his deposition that he fired the editor because he considered it “inappropriate” for her to appear at work dressed as a woman and that he found it “unsettling” and “unnatural” that she would appear wearing women’s clothing. He also testified that his decision to fire her was based on his perception of the editor as “a man dressed as a woman and made up as a woman,” and he admitted that his decision to fire her was based on “the sheer fact of the transition.” This testimony provided ample direct evidence to support the district court’s finding that the OLC head acted on the basis of the editor’s gender non-conformity.

Had this case been a Title VII case, the analysis would end at this point, the Eleventh Circuit said. However, because the editor’s claim was based on the Equal Protection Clause, the court was required under heightened scrutiny to consider whether the OLC head succeeded in showing that there was a “sufficiently important governmental interest” for his discriminatory conduct, the court explained, adding that this burden rested entirely on the state.

Restroom defense fails. The OLC head offered, on appeal, only one putative justification for the firing: his purported concern that failure to fire the editor could expose the state government to suits for invasion of privacy or sexual harassment. However, he presented insufficient evidence to show that he was actually motivated by concern over litigation regarding the editor’s restroom use, the Eleventh Circuit ruled. To support this justification, the OLC head pointed to a single statement in his deposition where he referred to a speculative concern about lawsuits arising if the editor used the women’s restroom. He asserted that, although there were single-occupancy restrooms available in the OLC office, the editor was not required to use these and may have used the multi-person restrooms located elsewhere in the Georgia Capitol Building.

There was no evidence that the restroom issue was an actual concern of the OLC head because there was nothing in the record to show he discussed this purported concern with anyone, and there was no evidence that the editor had used, or ever intended to use, the female restrooms in the capitol building while presenting as a woman. Also, there was no evidence of any complaints concerning the employee’s restroom use. Indeed, the Eleventh Circuit pointed out, the OLC head testified that he viewed the possibility of a lawsuit by a coworker if the editor were retained as unlikely.
Because the OLC head offered “no other reason that could qualify as a governmental purpose, much less an ‘important’ governmental purpose, and even less than that, a ‘sufficiently important governmental purpose,’” that was achieved by firing the editor due to gender nonconformity, the Eleventh Circuit affirmed the district court’s ruling in favor of the editor on her sex discrimination claim.

Guidance for employers. Employers clearly may not discriminate based upon nonconformity to gender stereotypes. The Glenn case, while providing a peek at the analysis courts may apply to the “restroom defense” in the context of a government justification for intentional bias against transgender employees, falls short of offering concrete guidance to employers. However, guidance for federal employers that was issued by the U.S. Office of Personnel Management (OPM) earlier this year may also prove helpful to private sector employers as well.

Noting that several issues commonly generate questions from managers and employees working with a transitioning employee, the OPM provided guidance on these issues, including use of restrooms and other sanitary facilities, to assist in “ensuring that transitioning employees are treated with dignity and respect.” The guidance includes the following statements:

Sanitary and related facilities: The OSHA guidelines require agencies to make access to adequate sanitary facilities as free as possible for all employees in order to avoid serious health consequences. For a transitioning employee, this means that, once the employee has begun living and working full-time in the gender that reflects his or her gender identity, agencies should allow access to restrooms and (if provided to other employees) locker room facilities consistent with his or her gender identity.

Confidentiality and privacy: An employee’s transition should be treated with as much sensitivity and confidentiality as any other employee’s significant life experiences, such as hospitalization or marital difficulties. Employees in transition usually want as little publicity about their transition as possible. They may be concerned about safety and employment issues if other people or employers become aware that they have transitioned. Medical information received about individual employees is protected under the Privacy Act (5 U.S.C. 552a).

Dress and appearance: Employees who begin the “real life experience” stage are required under the WPATH Standards to live and work full-time in the target gender in all aspects of their life, including dressing at all times in the clothes of the target gender. Once an employee has informed management that he or she is transitioning, the employee will begin wearing the clothes associated with the gender to which he or she is transitioning. Agency dress codes should be applied to gender-transitioning employees in the same way they are applied to other employees of that gender. Dress codes should not be used to prevent transgender employees from living full-time in the role consistent with their gender identity.

Names and pronouns: Managers, supervisors, and coworkers should use the name and pronouns appropriate to the employee’s new gender. Managers, supervisors, and coworkers should also take care to use the correct name and pronouns in employee records and in communications with others about the employee. Continued intentional misuse of the employee’s new name and pronouns, and reference to the employee’s former gender by managers, supervisors, or coworkers may undermine the employee’s therapeutic treatment, and is also contrary to the goal of treating transitioning employees with dignity and respect. Such misuse may also breach the employee’s privacy and create a risk of harm to the employee.

Recordkeeping: Consistent with the Privacy Act, the records in the employee’s Official Personnel Folder (OPF) and other employee records (pay accounts, training records, benefits documents, etc.) should be changed to show the employee’s new name and gender, once the employee has begun working full-time in the gender role consistent with his or her gender identity.

Insurance benefits: Employees in transition who already have federal insurance benefits must be allowed to continue their participation, and new employees must be allowed to elect participation in their new names and genders. If the transitioning employees are validly married at the time of the transition, the transition does not affect the validity of that marriage, and spousal coverage should be extended or continued even though the employee in transition has a new name and gender.

Wise employers will not wait for cases to work their way through the courts as more transgender-related issues arise before taking action – the OPM’s guidance may be a good place to start.

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