Comporting your Employment Practices to Recent Protections Extended to Transgender and Gender Nonconforming Employees

Earlier this month, Saks & Company settled a high-profile lawsuit alleging that it discriminated against a former salesperson on the basis of her transgender identity. The Saks litigation highlights the protections recently extended to transgender and gender nonconforming employees.

Title VII of the Civil Rights Act of 1964 forbids employers from discriminating against any individual because of race, color, religion, national origin, or sex. Historically, courts construed the term “sex” in Title VII narrowly to prohibit discrimination against women because they are women and against men because they are men; thus, excluding transgender and gender nonconforming employees from its protections.

However, the Equal Employment Opportunity Commission (“EEOC”), which is the government agency responsible for enforcing federal employment discrimination laws, ruled in Macy v. Holder that discrimination of transgender employees constitutes discrimination on the basis of sex under Title VII. Specifically, the EEOC stated, “When an employer discriminates against someone because the person is transgender, the employer has engaged in disparate treatment ‘related to the sex of the victim.’ This is true regardless of whether an employer discriminates against an employee because the individual has expressed his or her gender in a non-stereotypical fashion, because the employer is uncomfortable with the fact that the person has transitioned or is in the process of transitioning from one gender to another, or because the employer simply does not like that the person is identifying as a transgender person.” The EEOC’s ruling was followed by Attorney General Eric Holder’s December 18, 2014 announcement that the Department of Justice considers Title VII to extend to claims of discrimination based on gender identity, including transgender status.

Multiple lawsuits have been filed over the past year against employers alleging transgender discrimination under Title VII. As these cases make their way through the judicial system, employers should be proactive in developing and revising employee policies, procedures, and training to conform to these recently extended protections.

Messerli & Kramer’s litigation attorneys are not only experienced in representing clients in employment litigation, but also counsel, advise and audit clients with respect to employment-related policies and procedures to minimize the risk of litigation. Because an ounce of prevention is worth a pound of litigation, please contact us to discuss your employment law needs.

This communication does not constitute legal advice or create an attorney-client relationship. Please consult an attorney if you have questions.