Although the US Attorney General, Jeff Sessions, recently issued a memo stating that the federal government will no longer take the position that Title VII’s prohibition on sex discrimination protects transgender employees, this doesn’t mean that employers are now free to discriminate based on sexual identity.
A number of federal courts, as well as the Equal Employment Opportunity Commission (EEOC), have said that sex discrimination includes discrimination on the basis of gender identity and sex stereotyping and that Title VII bans anti-transgender discrimination.
In fact, the EEOC’s website lists the following as examples of unlawful discrimination by employers:
Failing to hire an applicant because she is a transgender woman.
Firing an employee because he is planning or has made a gender transition.
Denying an employee equal access to a common restroom corresponding to the employee’s gender identity.
Harassing an employee because of a gender transition, such as by intentionally and persistently failing to use the name and gender pronoun that correspond to the gender identity with which the employee identifies, and which the employee has communicated to management and employees.
Further, the anti-discrimination statutes of 20 states (including Washington and Oregon) and Washington D.C. bar employment discrimination based on gender identity. In addition, more than 200 cities and counties have banned gender identity discrimination.
The Occupational Safety and Health Administration (OSHA) released a guide to best practices on restroom access for transgender workers, and so far, this guide is still in effect. It advises employers to allow employees to use facilities that correspond with their gender identity.
The guidelines explain that restroom access for transgender employees is a health and safety issue, stating, “Restricting employees to using only restrooms that are not consistent with their gender identity, or segregating them from other workers by requiring them to use gender-neutral or other specific restrooms, singles those employees out and may make them fear for their physical safety. Bathroom restrictions can result in employees avoiding using restrooms entirely while at work, which can lead to potentially serious physical injury or illness.”
Please feel free to contact us if you have any questions about employment discrimination, whether related to gender identity, sexual orientation or to other “protected classes,” such as race, color, national origin, age, sex, pregnancy, citizenship, disability, veteran status, religion or genetic information.
