Gender Transitions in the Workplace

Employer obligations to employees that are considering and undergoing gender transition surgery are unclear. No federal employment law explicitly prohibits discrimination against transgender employees, but, some courts, including the Eleventh Circuit, have interpreted Title VII to prohibit such discrimination. See E.E.O.C. v. R.G. & G.R. Harris Funeral Homes, Inc. 884 F.3d 560 (6th Cir. 2018); Chavez v. Credit Nation Auto Sales, LLC, 641 Fed. Appx. 883 (11th Cir., 2016). These courts have determined that transgender discrimination can be unlawful when the employer is engaging in sex-stereotyping as prohibited under Title VII. See Price Waterhouse v. Hopkins, 490 U.S. 228 (1989) (plurality opinion); see also Glenn v. Brumby, 663 F.3d 1312, 1316-1318 (11th Cir. 2011) (describing how the Supreme Court’s holding in Price Waterhouse can make discrimination against transgender individuals unlawful).

Considering the uncertainty surrounding this issue, employers should consider taking proactive steps to ensure they remain in compliance with the law. Proactive steps include crafting a policy for individuals considering or undergoing gender transition surgery. Employers should ensure that their policy:

  • Respects privacy and ensures confidentiality;
  • Establishes a process for establishing individualized transition plans with employees;
  • Addresses the types of administrative changes that will be required before the transition occurs, including which changes will require documentation from the employee;
  • Designates an individual, preferably in the HR department, to serve as a point of contact for gender-transition-related issues; and
  • Addresses frequently asked questions such as dress codes and restroom use.[1]

Appropriately handling an employee’s gender transition is essential for both the employee and the employer. Employment counsel, like ELS, can help you navigate this rapidly developing field. ELS can also help draft or revise a policy on accommodating gender transitions in the workplace.

~ Author: Holly McDaniel, 2018 ELS Extern, Emory University School of Law, 3rd Year Law Student

[1] Society for Human Resource Management, “Managing Gender Transition in the Workplace”(https://www.shrm.org/resourcesandtools/tools-and-samples/toolkits/pages/managinggendertransitionintheworkplace.aspx+&cd=2&hl=en&ct=clnk&gl=us) (last visited Nov. 18, 2018)