Transgender discrimination has increasingly become a topic of concern for employers and insurance professionals who handle these claims.1 At the state level, some legislative bodies have even further confounded the issues surrounding equal protection for the transgender population by enacting anti-transgender laws. One recent example occurred in North Carolina when its state legislature enacted the “Bathroom Bill.” The Bill restricts transgender individuals to utilizing public restrooms that correspond to the sex listed on the individuals’ birth certificates. Such legislation poses the probability---if not certainty- --of an increasing number of transgender discrimination claims.
Despite increased awareness in recent times, it is likely that employers and communities still fail to recognize the number of transgender individuals who live and work in the United States. In June 2016, the Williams Institute at the U.C.L.A. School of Law released a survey, estimating that approximately 1.4 million adults in the United States identify themselves as transgender.2 Notably, the 2016 estimate of the transgender population was double the estimate that the Williams Institute reported in April 2011.3 In addition, the Williams Institute’s 2016 estimate reported that about 100,300 adult Floridians identify as transgender, which is approximately 0.66% of Florida’s total adult population. Florida has the sixth highest percentage of adult residents who identify as transgender.
Legal Protection of Transgender Individuals
In the employment law realm, the primary source of federal law that addresses workplace discrimination is Title VII of the Civil Rights Act of 1964 (“Title VII”).4 Presently, Title VII does not expressly protect transgender employees from discrimination. However, the United States Equal Employment Opportunity Commission (“EEOC”) makes clear that it interprets Title VII to protect transgender employees. In fact, the EEOC continues to expand protection for transgender employees against discrimination. In addition, cities and counties in Florida have started enacting codes that specifically protect transgender employees.
Within this continuing trend, employers will likely see an increase in transgender discrimination claims. There are two keys to handling, minimizing, and preventing transgender discrimination claims. First, to determine the full extent of the exposure, employers and claims professionals should identify the law under which the claim is being brought, and other potentially applicable laws. Second, employers must take steps to minimize the risk of continued discrimination or retaliation based on such claims.
Employees have multiple avenues for bringing transgender discrimination claims. These include Title VII claims and claims based upon state laws, such as the Florida Civil Rights Act of 1992 (“FCRA”).5 In addition, there may be county or municipal laws that protect transgender individuals.
As employers know, Title VII protects employees from discrimination by an employer based on sex, race, color, national origin, or religion.6 However, despite protecting “sex,” Title VII does not expressly protect gender identity or gender expression.7 Based upon this omission, courts have previously held that an individual’s status as a transgender person was not protected by Title VII.8
Recently, however, there has been a shift toward greater protection for transgender employees. In 2011, the Eleventh Circuit held that the Equal Protection Clause of the Fourteenth Amendment protects a transgender employee’s status as a transgender person.9 Moreover, courts have consistently held that Title VII protects employees against discrimination based on sexual stereotyping and failure to conform to gender norms, such as how a person of a certain sex should dress or behave.10 Transgender discrimination claims are tied into gender norms because a person is considered transgendered under the law “precisely because of the perception that his or her behavior transgresses gender stereotypes.”11 In a practical sense, what this means for employers is that any discrimination against a transgender employee could likely be covered by Title VII.
Through its enforcement of Title VII, the EEOC has also taken the position that it affords transgender employees protection from discrimination.12 In fact, the EEOC’s website specifically states that it protects employees from discrimination based on gender identity.13 From its inception, courts have broadly interpreted Title VII to provide protection to employees and its reach continues to expand. Therefore, it is likely that courts will continue to follow the EEOC’s lead in expanding protections to transgender employees.
Similar to Title VII, the FCRA does not expressly address transgender employees. Moreover, Florida courts have yet to weigh in on the issue. However, because the FCRA is patterned after Title VII, federal case law interpreting Title VII is applicable in the context of the FCRA.14 It is, therefore, prudent for employers to assume that the FCRA will likely afford protection to transgender employees.
Beyond the federal and state laws, employers and claims professionals must also be aware of laws at the municipal and county levels that may afford transgender employees protection. In Florida, many counties and cities maintain their own anti-discrimination laws, although the level of protection afforded to transgender employees, specifically, varies from municipality to municipality. Some county codes, such as the Hillsborough County Code, mirror or adopt the protections available under Title VII and the FCRA.15 Other county codes, such as the Miami-Dade County Code, include specific protections for transgender employees, including protection of employees’ gender identity and gender expression.16 There is often a lower threshold for employers to fall under these municipal level anti-discrimination laws, so a county or city anti-discrimination code or ordinance can potentially offer a transgender employee relief that may not otherwise be available under Title VII or the FCRA.
Upon receiving a transgender discrimination claim, it is advisable to check for all applicable county and city level anti-discrimination codes. This will help to fully evaluate the claim, particularly when the claim may not be covered by Title VII or the FCRA. Staying up-to-date is critical throughout the claims process because changes in municipal laws typically do not receive the publicity that changes in federal or state laws do. Further, municipal level anti-discrimination laws may have unique processes or criteria for handling discrimination claims or may offer different forms of relief to the employee.
In addition to Title VII, the FCRA, and relevant municipal codes, other laws may also apply, depending on the specific circumstances of the claim. For instance, the Family Medical Leave Act may apply where the alleged discrimination involves an employee attempting to take leave for gender reassignment surgery or for other treatment based on a gender dysphoria or gender identity disorder. As another example, the United States Department of Labor’s Occupational Safety and Health Administration recently issued a guide to employers regarding restroom access for transgender employees.17 Accordingly, understanding the wide variety of laws that may be involved in a transgender discrimination claim is critical when evaluating the claim.
Minimizing Claim Exposure
Gender issues in the workplace can be a particularly touchy subject. In fact, claims of transgender discrimination come with a high potential for subsequent retaliation claims. Title VII protects employees who engage in protected activity from retaliation, such as protesting discrimination or filing a charge of discrimination with the EEOC.18 Employers should therefore attempt to work with the transgender employee who is making the discrimination claim to devise a plan to prevent additional or future claims of discrimination or of retaliation. In doing so, there are three primary areas that the employer typically needs to address.
First, the employer should be sensitive to the fact that transgender employees may want access to the restroom of the gender with which they identify. If other employees object, the employer should also be sensitive to their needs. This is because courts have generally held that allowing an employee access to a restroom based on gender identity does not constitute harassment of the objecting employees.19 Ultimately, an employer should initiate a collaborative effort in an attempt to meet everyone’s needs.
In this regard, secondly, the employer should consider implementing employee education regarding the protections afforded to transgender employees. As part of any education, an employer should reiterate the employer’s anti-discrimination and anti-harassment policy. The employer should allow the transgender employee to decide the employee’s attendance at transgender education training. It may be helpful for the transgender employee to assist in allaying co-worker’s concerns. However, the employer must be sensitive and should certainly avoid putting the transgender employee in an uncomfortable position.
Third, employers should address and refer to the transgender employee properly. Transgender employees may opt to use a new name as part of the transition to their preferred gender. Employers should use the transgender employee’s preferred name and title, and should ensure that employees do the same.
With transgender discrimination issues making headlines and the requirement for workplace protections increasing, employers will likely see an increase in transgender discrimination claims. When evaluating a transgender discrimination claim, employers and claims professionals should first determine what laws may apply to the employee and which laws are relevant in evaluating their exposure. Employers should next take proactive measures to stop the discrimination and prevent retaliation. Taking these steps will allow employers and claims professionals to fully assess existing claims and help minimize the potential for future and additional claims.
1 The United States Equal Employment Opportunity Commission defines “transgender” as follows: “Transgender” refers to people whose gender identity and/or expression is different from the sex assigned to them at birth (e.g. the sex listed on an original birth certificate). The term transgender woman typically is used to refer to someone who was assigned the male sex at birth but who identifies as a female. Likewise, the term transgender man typically is used to refer to someone who was assigned the female sex at birth but who identifies as male. A person does not need to undergo any medical procedure to be considered a transgender man or a transgender woman. U.S. Equal Opportunity Comm’n, Fact Sheet: Bathroom Access Rights for Transgender Employees Under Title VII of the Civil Rights Act of 1964, https://www.eeoc.gov/ eeoc/publications/fs-bathroom-access-transgender.cfm (last visited October 18, 2016).
2 Andrew R. Flores, Jody L. Herman, Gary J. Gates & Taylor N.T. Brown, How Many Adults Identify as Transgender in the United States, June 2016, http://williamsinstitute.law. ucla.edu/wp-content/uploads/How-Many-Adults-Identifyas-Transgender-in-the-United-States.pdf.
3 Gary J. Gates, How many people are lesbian, gay, bisexual, and transgender? April 2011, http:// williamsinstitute.law.ucla.edu/wp-content/uploads/GatesHow-Many-People-LGBT-Apr-2011.pdf.
4 42 U.S.C. § 2000d et seq.
5 § 760.01, Fla. Stat.
6 42 U.S.C. §§ 2000e–2000e-17.
7 Miami-Dade County’s Municipal Code provides definitions of the terms “gender identity” and “gender expression”: Gender identity shall mean a person’s innate, deeply felt psychological identification as a man, woman or some other gender, which may or may not correspond to the sex assigned to them at birth (e.g., the sex listed on their birth certificate). Gender expression shall mean all of the external characteristics and behaviors that are socially defined as either masculine or feminine, such as dress, grooming, mannerisms, speech patterns and social interactions. Social or cultural norms can vary widely and some characteristics that may be accepted as masculine, feminine or neutral in one culture may not be assessed similarly in another. Miami-Dade County, FL., Municipal Code § 11A-2(12), (13).
8 See, e.g., Ulane v. Eastern Airlines, Inc., 742 F.2d 1081 (7th Cir. 1984) (holding that “Title VII is not so expansive in scope as to prohibit discrimination against transsexuals”).
9 Glenn v. Brumby, 663 F.3d 1312 (11th Cir. 2011).
10 Price Waterhouse v. Hopkins, 490 U.S. 228 (1989).
11 Glenn, 663 F.3d 1312.
12 Lusardi v. Dep’t of the Army, Appeal No. 0120133395, 2015 EEOPUB LEXIS 896 (E.E.O.C. 2015) (holding that Agency restrictions on transgender female’s ability to use a common female restroom facility constituted disparate treatment on the basis of sex and that the restroom restrictions combined with hostile remarks, including intentional pronoun misuse, created a hostile work environment on the basis of sex).
13 U.S. Equal Opportunity Comm’n, https://www.eeoc.gov/ eeoc/ (last visited October 18, 2016).
14 See Florida Dep’t of Cmty. Affairs v. Bryant, 586 So. 2d 1205, 1209 (Fla. 1st DCA 1991).
15 Hillsborough County, FL. Code of Ordinances § 30-19(b) (1).
16 Miami-Dade County, FL., Municipal Code § 11A-2(12), (13).
17 Occupational Safety and Health Admin., U.S. Dep’t. of Labor, Best Practices: A Guide to Restroom Access for Transgender Workers, https://www.osha.gov/ Publications/OSHA3795.pdf (last visited October 18, 2016) (providing “[a]ll employees, including transgender employees, should have access to restrooms that correspond to their gender identity”).
18 42 U.S.C. § 2000e–3.
19 Cruzan v. Special School District # 1, 294 F.3d 981 (8th Cir. 2002); see also Lusardi, 2015 EEOPUB LEXIS 896 (“[S]upervisory or co-worker confusion or anxiety cannot justify discriminatory terms and conditions of employment. Title VII prohibits discrimination based on sex whether motivated by hostility, by a desire to protect people of a certain gender, by gender stereotypes, or by the desire to accommodate other people’s prejudices or discomfort.”).
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