Most employers have policies related to sex-based discrimination and conduct harassment trainings or sensitivity workshops based on traditional gender roles, but a new case highlights the need to consider transgender employees. Although there is no federal law explicitly prohibiting discrimination against transgender persons in employment, a transgender employee successfully sued her employer for discrimination on the basis of her gender non-conformity.
The Eleventh Circuit federal court ruled in Glenn v. Brumby that transgender employees may invoke federal constitutional protections against sex-based discrimination based on gender non-conformity. In the case, the employee was born a biological male, but was diagnosed with gender identity disorder. She was hired by her employer while still a male and later told her direct supervisor she was taking steps to become a woman. Shortly thereafter, the employee was terminated, allegedly because the employee’s “gender transition was inappropriate, that it would be disruptive, that some people would view it as a moral issue, and that it would make [the employee’s] coworkers uncomfortable.” The employee then sued her employer.
The employee argued that the employer terminated her based on her transsexual gender and that this constituted sex discrimination. The Eleventh Circuit court ruled in the employee’s favor and held that people, whether transgender or not, are protected from discrimination on the basis of “gender stereotype.” Therefore, the employer “violated the Equal Protection Clause’s prohibition of sex-based discrimination when [he] fire[d] a transgender or transsexual employee because of his gender non-conformity.”
While the Eleventh Circuit’s ruling on the Equal Protection Clause currently only applies to governmental employees, private employers should be wary of discrimination against transgender employees. The ruling also referenced and analogized discrimination under Title VII of the Civil Rights Act , which does apply to private employers, and the favorable language may be used in private employer suits.
Thus, all employers private and public should be vigilant about their employment practices and policies with regard to discrimination, whether based on gender or gender non-conformity. If you do not currently include transgender employees in your list of protected categories in your EEO and no-harassment policies, you are falling behind.