Transgendered Employees in the Workplace

By Susan G. Fentin

According to a report published in February by the National Gay and Lesbian Task Force and the National Center for Transgender Equality, transgendered workers are twice as likely to be unemployed and experience a high degree of harassment or other workplace mistreatment. The report, Injustice at Every Turn: A Report of the National Transgender Discrimination Survey, details the responses of more than 6,000 individuals who either are in the process of transitioning from one gender to another or for whom gender nonconformity is a part of their identity. The respondents reported adverse job actions, failure to hire, denial of promotions, harassment, and mistreatment at work, by both supervisors and coworkers.

Federal Protections for Transgendered Employees

Transgendered employees may also have protection under federal law. Although there is no specific statutory protection under Title VII of the Civil Rights Act of 1964, many federal courts have concluded that under the U.S. Supreme Court’s 1989 decision in Price Waterhouse v. Hopkins, transgendered employees may not be subjected to different treatment simply because they don’t conform to the stereotypical appearance or behavior that would be associated with their gender at birth. In the Price Waterhouse case, a female employee of the accounting firm was denied partnership and criticized by her supervisors for not appearing sufficiently “feminine.” The Court ruled that an employer that insists an employee match the stereotypes associated with her gender violates Title VII.

That holding has been relied on by transgendered employees who have sued their employers, alleging either that they suffered adverse employment actions because their appearance didn’t conform to the traditional gender stereotype or that their nonconformity was the real motivation behind decisions about their performance. Thus, even though transgendered individuals aren’t explicitly protected under Title VII, some federal courts have concluded that the Price Waterhouse decision does protect their right to be free from stereotyping.

The Americans with Disabilities Act, however, expressly excludes transsexuals from protection against discrimination based on disability. However, workers who need a leave of absence for gender reassignment surgery or treatment such as hospitalization due to reassignment surgery, continued counseling, or more therapy may qualify for a leave of absence under the Family and Medical Leave Act (FMLA). Based on the Title VII protection, the eligibility for FMLA leave, and protections under state laws, employers are well advised to treat transgendered employees with respect and attempt to accommodate their status before and after surgery.

Case in Point

The benefits of properly handling issues surrounding transsexual employees are illustrated by an Massachusetts Commission Against Discrimination (MCAD) decision from 2009. In Millet v. Lutco, Inc., the full commission again addressed the concerns of a transgendered employee who alleged that she had been subjected to harassment based on her gender. When Charlegne Millet began the sex-change process, the company designated a special bathroom for his use. Once the sex change was complete, she began using the women’s restroom. Lutco granted her leave for the surgery, and the president of the company told employees that harassment or discrimination against her wouldn’t be tolerated.

Eventually, however, Lutco terminated Millet after deteriorating performance and aggressive, hostile, and public disagreements with her supervisor. Her subsequent lawsuit for harassment and discrimination was not successful. MCAD applauded the company for its proactive behavior during her surgical transition and found that it was Millet’s behavior, not her transsexual status, that motivated her termination.

So, What Should HR Do?

Effective HR responses to issues involving transgendered employees always include communication ― with the employee, his supervisors, and other company employees.

• Talk with the person making the request, and be sensitive to the issues involved in gender reassignment surgery.

• Keep things as confidential as possible until you get the person’s consent to make it more publicly known that he is going through a transition.

• Once the transition is public, typical concerns revolve around the use of bathroom facilities. Employers should brainstorm about solutions that will make both the transgendered employee and his coworkers comfortable. If possible, an employer can dedicate a restroom for the transsexual employee’s use until the gender reassignment surgery is complete or have a sign that can be posted to inform coworkers that the bathroom is “in use” while the transsexual employee is inside.

• Be sensitive to the vulnerability of transgendered employees to harassment or discrimination. Educating your workforce about respectful behavior and disciplining employees who cross the line are essential to the successful management of this tricky situation.

The recently issued report on the transgender discrimination survey echoes these recommendations and also advocates for the enactment of nondiscrimination laws and written policies to assist employers with handling gender transition issues. A copy of the report is available at www.thetaskforce.org/downloads/reports/reports/ntds_full.pdf. Proactive employers will read the report and take its recommendations into consideration when dealing with transgendered workers.

Susan G. Fentin is a partner at the firm of Skoler, Abbott & Presser, P.C., and associate editor of Massachusetts Employment Law Letter. She can be reached at (413) 737-4753 or sfentin@skoler-abbott.com. Susan speaks annually at the M. Lee Smith Publisher’s Advanced Employment Issues Symposium and also is a frequent presenter in webinars sponsored by M. Lee Smith. She is experienced in both labor law and employment litigation, speaks frequently to Employer Associations on employment law topics, and has appeared on the CBS Evening News with Dan Rather in an article on pregnancy discrimination.