Does Title VII of the Civil Rights Act prohibit discrimination based on gender identity (as part of its prohibition on gender discrimination)?
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The EEOC has said yes, it does. “Federal law on the subject arises out of agency and court interpretations of Title VII of the Civil Rights Act of 1964, which expressly prohibits workplace discrimination on the basis of race, color, religion, sex and national origin. According to information provided by Jeanne Goldberg, a senior attorney advisor with the Equal Employment Opportunity Commission (EEOC), Title VII’s prohibition against sex discrimination also bans any employment discrimination based on gender identity or sexual orientation.”
But this interpretation has been legally challenged, both in appeals courts and by former U.S. Attorney General Jeff Sessions, who issued a memo in 2017 to that effect.
As such, the issue is not settled, and the Supreme Court will be hearing a case to address the issue.
Discrimination Based on Gender Identity
In the meantime, it seems reasonable to assume that all employers would want to steer clear of any form of gender-based discrimination—regardless of how the case eventually turns out. That means gender-based discrimination must be taken seriously, including discrimination aimed at transgender individuals.
At the state and local level, there are already clear laws in place that prohibit discrimination against transgender individuals, regardless of the interpretation of Title VII at the federal level.
Here are some examples of ways employers can train teams to reduce discrimination against transgender individuals:
- Bias based on gender identity is never OK—not in hiring, not in other employment practices (like pay, promotions, project assignments, etc.), and not in how people are treated.
- Refusal to use the name and pronouns that correspond with an individual’s gender identity is an example of discriminatory behavior and is not acceptable. (Consistently forgetting the right name and/or pronouns is not a reasonable excuse.)
- Don’t make rules against transgender individuals being able to use bathrooms that correspond with their gender identity.
- Never allow or condone harassment for any reason, let alone any reason related to gender identity or gender transitioning.
- Train people on what it means to discriminate and what actions constitute discriminatory adverse employment actions—including refusal to promote, hire, give good assignments, etc.
While we wait to see what the Supreme Court decides, what other items would you add to this list? How do you train your team on avoiding discriminatory practices as they relate to gender identity?
Bridget Miller is a business consultant with a specialized MBA in International Economics and Management, which provides a unique perspective on business challenges. She’s been working in the corporate world for over 15 years, with experience across multiple diverse departments including HR, sales, marketing, IT, commercial development, and training.