Exactly one month ago, I addressed what many consider to be the elephant in the room when it comes to transgender employees: bathroom use.
On Wednesday, EEOC Commissioner Chai Feldblum fired off a series of tweets (1, 2, 3, 4, 5, 6, 7) to lawyers representing employers and employees. Below (and here) is the one she sent to my side of the bar:
On my speaking boondoggles around the country, what’s the biggest issue I hear from HR professionals involving transgender employees?
Yep, it’s the use of the bathroom.
Folks, it’s not that complicated. But, I’ll get to that in a sec. First, with a tip of the hat to Joshua Block (@JoshACLU), over the weekend, I read this tweet, which links to this story from Jessica Shepherd (@JessShepSaginaw), about a Planet Fitness location in Michigan that received a complaint from a female gym member. This woman complained to the gym about a transgender woman (assigned male at birth; identifies as female) in the woman’s locker room. She then told other gym members that “a man” was using the woman’s locker room.
So Planet Fitness responded. Continue reading
Over the weekend, I joined a Facebook thread discussing a recent federal court complaint filed in Texas by a former Saks employee, Leyth O. Jamal. Ms. Jamal claims that Saks violated Title VII of the Civil Rights Act by discriminating against her because she is transsexual.
Saks claims (here) that the complaint lacks merit because Title VII doesn’t prohibit discrimination against transgender employees.
Writing for Slate.com, Mark Joseph Stern calls out Saks’ “trans-bashing legal strategy” as “legally untenable.” Underscoring the Supreme Court’s decision in Price Waterhouse v. Hopkins, Mr. Stern notes that Title VII forbids sexual stereotyping. For example, in Price Waterhouse, the company allegedly treated Ms. Hopkins differently because she was “macho,” was “tough talking” and used “foul language.” That is, she didn’t conform to the company’s expectations of how a woman should act in the workplace.
Under federal law (Title VII), employers cannot discriminate because of one’s sex. While Title VII does not explicitly coverage transgender employees (i.e., someone born female who presents male, and vice-versa; also known as gender identity), the EEOC’s position is that transgender employees are protected too. Indeed, they’ve begun filing federal lawsuits on behalf of transgender employees who claim to have been discriminated against.
But, Courts have not uniformly accepted the EEOC’s position. Indeed, the state of the law here is very much unsettled.
Just before Thanksgiving, a Texas federal court considered whether an employer can discriminate under Title VII based purely on gender identity…and get away with it.
More after the jump…
* * *
Even without a federal law that specifically bans discrimination in the workplace based on sexual orientation or gender identify, it’s no secret that one of the EEOC’s top priorities is to protect LGBT workers from discrimination.
And the EEOC is being quite transparent about it, with a new guide for employers and employees.
I’ve got that for you after the jump…
And here I just got finished telling an audience yesterday at the Philadelphia Chamber of Commerce that the Employment Non-Discrimination Act was dead.
Guess I was wrong.
More on this after the jump…
You have an employee handbook, an anti-harassment policy, training, the whole nine.
But, sometimes, notwithstanding your best efforts to create a positive, respectful workplace, you receive a complaint from an employee who claims to be the victim of harassment based on [insert protected class].
All the prophylactic measures you’ve already installed mean nothing unless you respond to that complaint appropriately.
See how one company did it right, after the jump…
Title VII of the Civil Rights Act of 1964 prohibits discrimination based on a number of protected classes. Sexual orientation isn’t one of those protected classes specifically listed in the statute.
So, if an employee complains about sexual-orientation harassment and is later fired because she complained, then that won’t create a claim under Title VII. Or does it?
Find out after the jump…
According to a Friday report from Cynthia L. Hackerott at Wolters Kluwer, President Obama will sign an Executive Order today banning discrimination against LGBT employees by federal contractors.
Last month, I blogged here that the White House had announced that it intended to eventually ban LGBT discrimination by federal contractors through Executive Order because the Employment Non-Discrimination Act (ENDA), did not make it through Congress.
Since that time, several gay-rights groups withdrew their support for ENDA, fearing that it afforded “religiously affiliated organizations … a blank check to engage in workplace discrimination against LGBT people.”
The Employer Handbook Blog
Share the news: President Obama will prohibit federal contractors from discriminating on the basis of sexual orientation or gender identity.
— The White House (@WhiteHouse) June 16, 2014
The White House announced the news yesterday via Twitter.