Transgender Applicant Wins Sex Discrimination Suit

(Published November 3, 2008)

 

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A federal judge ruled that taking an adverse action against an individual for transitioning genders is discrimination "because of sex" under Title VII.  It is important for employers to realize that their policies and practices must take into account individuals with gender identity disorder.

 

NOT A GOOD FIT? NOT A GOOD REASON!

A former U.S. Army Special Forces commander was diagnosed with gender identity disorder when she applied for a position as a terrorism analyst at the Library of Congress.  She interviewed as "David" (her legal name at the time) in traditionally masculine attire.  After accepting the job offer, she disclosed her plans to transition from male to female; she would begin the job as "Diane" and present as a woman on a full-time basis.  The offer was rescinded with the explanation that she was not "a good fit."

The judge wrote in his decision that the Library thought the applicant was "significantly better" than the other candidates, until she disclosed her transsexuality.  In refusing to hire her because her appearance and background did not comport with its sex stereotypes about how men and women should act and appear, and in response to her decision to transition, legally, culturally, and physically, from male to female, the employer violated Title VII’s prohibition on sex discrimination.  (Schroer v. Billington, D.C. DC, No. 05-1090, 2008)

REVIEW POLICIES AND PRACTICES

Although gender identity is not a protected characteristic under Title VII, transgender individuals can find protection under the law.  Add to that the growing number of state laws that actually do prohibit discrimination on the basis of gender identity, and employers have all the more reason to update their policies and practices. 

The Human Rights Campaign (HRC) — the nation’s largest gay, lesbian, bisexual, and transgender (GLBT) civil rights organization — says that the first step in preventing or eliminating discrimination against transgender employees is to include "gender identity" or "gender identity or expression" among the list of protected categories in your organization’s non-discrimination and -harassment policies.

BASF Corporation’s non-discrimination policy has included sexual orientation for several years, and gender identity and expression were included this year, according to Katherine A. Reardon, Director, Diversity and Inclusion, North America (Florham Park, NJ).  "We have had domestic partner benefits and a sanctioned GLBT and Friends Group for several years," Reardon said in explaining BASF’s inclusion for the first time on HRC’s 2009 Corporate Equality Index (CEI), which rates companies based on their treatment of GLBT employees, consumers, and investors.

Reardon acknowledged there have been a few bumps along the road to inclusiveness: "We occasionally have encountered some resistance while implementing these practices, but continue to stress the importance and the value of recognizing diversity."

If you’re concerned about negative reactions from employees, customers, and/or investors to your organization’s implementation of GLBT-inclusive policies, the HRC recommends incorporating information on gender identity and gender expression into your existing diversity or Equal Employment Opportunity compliance training programs. Diversity training goes a long way in reducing employee discomfort. 

Also, keep in mind that your goal is not to change people’s beliefs, but rather, to prevent and correct inappropriate workplace behavior and to protect workers from unfair treatment.  Thus, employees and customers have the right to disagree with GLBT-friendly policies and diversity programs.  They just need to understand that you have a right to ask them to abide by them.

TIPS ON WORKPLACE REALITIES

The integration of transgender employees into the workplace raises some common questions.

 

How is the dress code applied?  Dress codes should be applied consistently to all employees, regardless of gender identity.  An employee who identifies as male should follow the guidelines for male employees, and vice versa.  Consider modifying the dress code to avoid gender stereotypes.

Which bathroom is used?  The HRC recommends allowing employees to use the restroom that corresponds to their full-time gender presentation. 

How should the employee be referred?  A transgender person who presents herself as a woman should be called "she." Likewise, a transgender person who presents himself as a man should be referred to with male pronouns.  If you’re not certain of someone’s gender, it is appropriate to respectfully ask their name and what pronoun they prefer be used.

 

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