If one of your male employees came to you and said her new name is Caitlyn, would she be protected under anti-discrimination laws?
Though most Americans do not seem to realize it, anti-discrimination legal protections in employment for transgender as well as for gay, lesbian, and bisexual employees are not uniform across the U.S. or even across Florida. Miami-Dade, Broward, Palm Beach counties, and many cities in them, have ordinances protecting transgender employees from discrimination, but the federal Employment Nondiscrimination Act — which would amend existing federal anti-discrimination law to add protections for lesbian, gay, bisexual, and transgender (“LGBT”) employees — has never passed Congress.
Employers in South Florida need to be aware not only of city and county employment anti-discrimination protections available to transgender employees. Federal law is also constantly evolving in this area. Therefore, employers need to include protections for their LGBT employees in their equal employment opportunity (“EEO”), anti-harassment, and anti-retaliation policies.
Transgender employees are most directly protected from employment discrimination under current federal laws by the legal theory of “gender stereotyping.” The U.S. Supreme Court back in 1989 ruled employers may not decide to fire or otherwise discriminate in employment due to an employee’s failure to conform with norms of that person’s gender. In that case, the employer had told the employee she was not “feminine” enough, and the Supreme Court ruled her male colleagues were making decisions based on gender stereotypes.
A female who acts too “manly” would be covered by this protection; but so too would a female who starts to transition to become a man and whose employer fires him for starting to act too “manly.” Thus, even without express protections under federal law, a transgender employee may be protected from discrimination. The Equal Employment Opportunity Commission (“EEOC”) and federal courts of appeal around the country have readily found this gender stereotyping theory prohibits such discrimination against the transgendered. The Department of Justice also takes the position that transgender employees are always covered by the federal law, Title VII. As such, current law supports all employers including this protected category in their policies.
In fact, the EEOC just recently settled in April 2015 with a Lakeland-based healthcare organization. The Lakeland company agreed to pay $150,000 to settle one of the first two lawsuits ever filed by the EEOC alleging sex discrimination under Title VII against a transgender person. The company also agreed to update its policies and provide training to both managers and non-management employees about transgender issues.
The EEOC’s lawsuit claimed the employer had discriminated based on sex by firing its director of hearing services after she began to present as a woman at work. The EEOC alleged discrimination because the former director was transgender, transitioning from male to female, and because she did not conform to the employer's gender-based stereotypes.
In comments about the settlement, Malcolm Medley, director of the EEOC’s Miami District Office, stated, “The EEOC is committed to its efforts to prevent discrimination based on sexual orientation or gender identity. It is our policy that employees who are capable and qualified to perform the responsibilities to which they are assigned, should be permitted to do so, regardless of their sexual identity.”
This same theory of gender stereotyping has also been found to apply under federal law, although less frequently, to claims by gay or lesbian employees. Effeminate gay men, for example, have been found by courts to state claims under Title VII for perceived failure to conform to a masculine gender role.
At the same time that courts and administrative agencies are recognizing these types of lawsuits by LGBT employees, lawmakers across the state and country are also continuing to add these types of protections. Utah became the most recent state, in early 2015, to protect LGBT employees from discrimination (Florida still lacks a statewide law). In May, 2015, Leesburg became the latest city in the state to do so. Under the ever-evolving laws in this area, multistate and multicity employers never know exactly when their employees may be protected by such anti-discrimination statutes.
Federal contractors are also now required to provide anti-discrimination protections to LGBT employees, regardless of whether the jurisdiction in which the employees work have such protections under state or local laws. All such federal contractor employers should ensure they protect their employees.
Employers that do not currently include “gender identity or expression” and” sexual orientation” as protected categories in their employment policies should strongly consider adding them, and conducting training in these areas, for the legal protections they will provide.
John S. Lord, Jr., is a partner and co-chair of Foley & Lardner LLP's Lesbian, Gay, Bisexual and Transgender Affinity Group, and is a member of the Labor & Employment Practice and the Health Care Industry and Senior Living Teams. He can be reached at email@example.com.
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