Equal Opportunity for Transgender People. September 12, 2007 2007 National Equal Opportunity Professional Development Forum Presenter: Lisa Mottet (firstname.lastname@example.org). Presenter Lisa Mottet, Esq. Legislative Lawyer, Transgender Civil Rights Project National Gay and Lesbian Task Force
September 12, 2007
2007 National Equal Opportunity Professional Development Forum
Presenter: Lisa Mottet (email@example.com)
Legislative Lawyer, Transgender Civil Rights Project
National Gay and Lesbian Task Force
In its broadest sense, “transgender” encompasses anyone whose identity or behavior falls outside stereotypical gender expectations.Defining Terms
Some have medical treatment, most do not
Identification documents are not always changed
Gender transition at work happens in different ways.
Common to tell one’s supervisor first and develop a timeline
Others start presenting in a more masculine or feminine way and coworkers notice
Transgender experiences are different, but often very difficult.
Depending on a person’s economic and other resources, discrimination against them can cause a spiral of other problems.Gender Transition
Case law interpreting “sex” is primarily under Title VII, however, courts import Title VII analysis into Title IX, therefore it is wise to assume the same interpretations will apply under Title IX
A firefighter living as a male (but intending to transition to female imminently) was harassed by coworkers for her increasingly feminine appearance. After speaking with a supervisor about the harassment and her intention to transition, she was suspended from work. Relying on Price Waterhouse, the 6th Circuit held that discrimination on the basis of Smith’s feminine appearance was illegal sex stereotyping. The court, referring to cases in the 70s and 80s that interpreted Title VII less inclusively, explained that the approach taken in those cases “has been eviscerated by Price Waterhouse.” 378 F.3d 566 (6th Cir. 2004)
Diane Schroer was offered a job as a terrorism analyst at the Library of Congress. She interviewed as Dave because she hadn’t formally transitioned from male-to-female. After getting the offer, she asked her new boss if she could start work as a woman to make a clean transition. The job offer was revoked, with the employer saying she wasn’t a “good fit” and she sued. The D.C. Circuit denied a motion to dismiss explaining that she may be the victim of sex discrimination. 424 F. Supp. 2d 203 (D.D.C. 2006).
Courts or administrative agencies in several states have now ruled that existing state laws banning sex or disability discrimination protect transgender people:
Ask yourself – is the person’s gender identity and expression being recognized in this situation?
Understand and apply the concept of reasonable accommodation.
Ask yourself – is this a situation where the typical policies or procedures are resulting in a transgender person having to unfairly endure difficult or different conditions at work?
Biases of customers or coworkers are not a valid reason for discrimination.
Ask yourself – is this a situation where an entity is trying to accommodate the biases, or lack of comfort with transgender people, of customers or others?Three principles to follow:
People should use the bathroom that matches their gender identity.
This is significantly less of an issue than people think it is. Employees will take the lead of management: if management declares this policy, people will follow.
Also helpful is an attitude that indicates that this is “no big deal.”Restrooms
Refusal to use correct pronouns, or carelessness in never learning to use the correct pronoun
Refusal to use a person’s preferred name
Asking excessively personal questions that would be considered inappropriate if asked of non-transgender co-workers
Discussing coworkers’ personal business behind their backs, including intentionally outing a personHarassment and Hostile Environment
Check-off box for male or female on a job application form
Filling out an I-9 form, an employer discovers their employee is transgender
Entering a secure building, a person is asked for identification
A background check reveals the person’s old name or gender
A transgender person fills out forms with their current name or gender, even though they may not be “legally changed”
Don’t discriminate when transgender status is discovered
Make allowances for people who earnestly fill out forms or give information that matches their gender identityMale/Female Boxes, Identification Cards, Background Checks, Security Checks
People should be housed according to their gender identity.
Harassment should not be tolerated.Gender-Specific Housing (possibly issues in Job Corps programs, etc.)
When concerns arise, the best solution is to provide accommodations for private showers and changing areas within the common area.
There are other options and the inquiry is case-by-case.Showers and Locker Rooms
Transgender employees should be permitted to dress in accordance with the gendered dress standard that is appropriate to their gender identity.Dress Standards