The evolving issue of workplace discrimination against transgender employees is expanding legal definitions of sex discrimination in some jurisdictions. While no federal law protects transgender people from discrimination, some courts are siding with transgender employees who stake a claim based on sexual stereotyping.
In Glenn v. Brumby, the 11th Circuit in December 2011 affirmed a district court’s ruling in favor of a transgender plaintiff based on sexual stereotyping. The plaintiff alleged discrimination under the Equal Protection Clause, which applies only to suits against the government, but the decision is expected to have implications for Title VII litigation brought against private employers as well.
After Glenn Morrison came dressed as a woman to an office Halloween party at the State of Georgia’s Office of Legislative Counsel, and later told his supervisor that he was proceeding with gender transition, he was terminated. He completed gender reassignment surgery and sued under a new name, Vandiver Elizabeth Glenn, in federal district court. Sewell Brumby, head of the Office of Legislative Counsel, testified that his decision to terminate Glenn was based on “the sheer fact of the [gender] transition.” The district court granted summary judgment to Glenn, and the 11th Circuit concurred.
“All persons, whether transgender or not, are protected from discrimination on the basis of gender stereotype,” the appeals court said. “[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 question for private sector employers is whether the logic of the decision will apply to Title VII cases in the 11th Circuit. Like Glenn, other transgender plaintiffs have been successful in other jurisdictions when they argued that gender discrimination is a form of sexual stereotyping. These claims grow out of the 1989 Supreme Court decision in Price Waterhouse v. Hopkins (see “The Price of Stereotyping”).
In the Glenn decision, the court cited Price Waterhouse, noting that “instances of discrimination against plaintiffs because they fail to act according to socially prescribed gender roles constitute discrimination under Title VII.”
The 11th Circuit also cited Schwenk v. Hartford, a 2000 9th Circuit decision finding a male-to-female transgender plaintiff who was singled out for harassment had stated an actionable claim for sex discrimination under the Gender Motivated Violence Act because “the perpetrator’s actions stem from the fact that he believed that the victim was a man who ‘failed to act like one.’”
“While Glenn deals specifically with a public employer and employee, the court could apply similar reasoning to a transgender employee’s sex discrimination claim against a private employer under Title VII,” says Littler Mendelson Shareholder Dionysia Johnson-Massie.
In addition to potential liability from gender stereotyping claims, employers also face possible litigation from transgender employees under state and local laws. Sixteen states (including Massachusetts, effective July 1) and the District of Columbia, as well more than 150 cities and counties, have laws protecting employees’ gender identity or expression, according to Paul Guequierre, deputy press secretary at the non-profit Human Rights Campaign.
Guequierre notes that while in 34 states it is still legal to fire employees solely for being transgender, some corporations have stepped in with policies to protect transgender employees. “Fifty percent of Fortune 500 companies include workplace protections for transgender employees in their nondiscrimination policies,” Guequierre says.
Review and Revise
But not all employers are ready to take that step.
“In-house counsel I work with are on different points of the pendulum on this issue,” says Jackson Lewis Partner Michelle Phillips. “Gender identity is a confronting issue for many.”
Nonetheless, the Glenn decision is a reminder to employers to review their anti-discrimination and sexual harassment policies and revise them if necessary.
“Best practice is to add gender identity to a company’s sexual harassment policy, particularly for those companies that operate in jurisdictions in which gender identity is protected,” Phillips says. “Some companies prefer not to do that. In such cases, a catchall provision at the end of the harassment policy can be included prohibiting conduct in violation of any federal, state or local laws.”
Phillips also suggests employers consider providing training on gender identity and gender noncomformity issues.
“There is no blanket policy, but a hostile work environment in which any employee is excluded or ridiculed or which interferes with the terms of employment is not acceptable,” says Phillips. “This could include a fellow employee reciting scriptural text to another in the next cubicle.”
Employers should remind all employees that it is unlawful to create a hostile work environment based on gender or gender noncomformity, Johnson-Massie says. She adds that while employees can choose to disagree with other employees’ personal decisions and avoid socializing during their personal, non-work-related time, they must be mindful of treating them respectfully and in compliance with company policies when conducting company business in the workplace or offsite.
“If the issues are not handled well, lawsuits and PR and productivity issues disruptive to the workplace may occur,” Phillips says.