Time & Attendance
By Jon Hyman
Nov. 5, 2014
My daughter is in a rock band. “Band” might be too strong of a description. She takes guitar lessons at the local School of Rock, which includes a performance program in which the kids play in clubs every few months. One of her set lists included “The Time Warp” from “The Rocky Horror Picture Show.” She chose the song. I had to make sure that all of the other parents knew that I did not allow my 8-year-old to watch a movie about a cross-dressing alien scientist.
What happens if that cross-dresser happens to be your employee? Can you discriminate against that employee based on his or her gender preference?
Title VII does not, on its face, protect workers based on their preferred gender or dress from discrimination.However, Title VII protections against sex-stereotyping-as-gender-discrimination are being extended increasingly by the courts. This type of discrimination was first explained 25 years ago by the U.S. Supreme Court in its landmark decision on Price Waterhouse v. Hopkins.
Two years ago, the U.S. Equal Employment Opportunity Commission made what might be the most significant pronouncement to date on the protection of transgender workers under gender discrimination. Macy v. Holderinvolved a transgender woman, Mia Macy, who claimed that the federal Bureau of Alcohol, Tobacco, Firearms and Explosives denied her a job after she announced she was transitioning from male to female.
In reinstating Macy’s Title VII claim, the EEOC concludedthat intentional discrimination against a transgender individual because that person is transgender is, by definition, discrimination “based on … sex” in violation of Title VII.
According to the EEOC, “That Title VII’s prohibition on sex discrimination proscribes gender discrimination, and not just discrimination on the basis of biological sex, is important … Title VII prohibits discrimination based on sex whether motivated by hostility, by a desire to protect people or a certain gender, by assumptions that disadvantage men, by gender stereotypes, or by the desire to accommodate other people’s prejudices or discomfort.”
The EEOC is not stopping with administrative pronouncements. In September, it filed two different lawsuits in two different federal courts against two different employers, each of whom it alleges fired an employee because she is transgender, because she was transitioning from male to female or because she did not conform to the employer’s gender-based expectations, preferences or stereotypes.
In one of the cases, the EEOC claims that after theemployee announced that she was undergoing a gender transition from male to female, and would soon start to dress infemale-appropriate attire at work, the employer fired her, stating that what she was “proposing to do” wasunacceptable.
No court has yet to conclude that Title VII specifically includes gender identity under the umbrella of sex discrimination protections. Yet, one cannot overstate the significance of the fact that the agency responsible for enforcing the federal EEO laws is pursuing these claims. Many employers operate under the belief that they are free to discriminate because of sexual orientation or gender identity because Title VII lacks a facial prohibition. As these cases illustrate, that belief, no matter how commonly held, might be mistaken.
The EEOC and I disagree on a lot. Yet, on this issue, we are on the same page. It strikes me as appalling that in the year 2014 there are still minority groups against whom it remains facially legal to discriminate. Already, 21 states prohibit sexual orientation discrimination in employment, 18 of which also prohibit gender identity discrimination; another 140 cities and counties have similar laws. Many companies have also made the private decision to prohibit this type of discrimination in their individual workplaces.
For the uncovered states, this EEOC decision signals that the time is coming when this type of discrimination will no longer be an open issue. I suggest you get on the bandwagon now, and send a signal to all of your employees that you are a business of inclusion, not one of bigotry and exclusion.
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