What Are the Rights of Transgender Employees?
Marginalized employees have federal protection from discrimination. Here’s what you need to know about the rights of transgender and gender non-conforming employees.
Federal law protects transgender and gender non-conforming employees from sex-based discrimination by Title VII of the Civil Rights Act, and many states have their laws prohibiting and penalizing workplace discrimination. Transgender employees are protected from discrimination due to their gender status. Transgender cannot lose their job due to their gender identity, the right against harassment, and the right to safe and accessible restrooms. Transgender employees who experience workplace sex-based discrimination may file a charge with the Equal Employment Opportunity Commission.
Title VII of the Civil Rights Act
In Bostock v. Clayton County, Georgia, in 2020, the Supreme Court ruled that Title VII of the Civil Rights Act of 1964 applied to transgender and gay employees. Title VII of the Civil Rights Act prohibits employers from discriminating against any individual based on race, color, religion, sex, or national origin.
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The Court ruled Title VII’s prohibition of sex-based discrimination also applied to an individual’s sexual orientation and gender identity, not just to women in the workplace. This landmark ruling federally protects transgender and gender non-conforming employees from workplace discrimination and subjects employers who violate the statute to penalties.
Protections in the Workplace
Title VII federally protects transgender employees from discrimination because of their gender identity, gender transition, sex assigned at birth, or transgender status. Many states and jurisdictions also have laws prohibiting and penalizing workplace discrimination due to an employee’s gender identity and expression, including California, Colorado, Connecticut, Delaware, the District of Columbia, Hawaii, Puerto Rico, and Washington State.
Transgender employees’ rights and protections in the workplace envelop all forms of discrimination, such as:
- The right to not be fired or refused a job because of gender identity,
- The right against harassment and to be treated with respect,
Sex-based harassment is unlawful and violates Title VII when severe, widespread, and an employer does not act to stop the harassment. Sex-based harassment based on gender identity may include derogatory comments, repeated and intentional use of incorrect pronouns, or any disrespectful personal questions;
- The right to safe and accessible restrooms or other sex-based facilities
The Equal Employment Opportunity Commission (EEOC) and federal courts have considered denying access to facilities consistent with one’s gender identity as sex-based discrimination. Employers may not deny or limit access, demand medical or legal documentation of an employee’s gender to allow access, or require a transgender employee to use unsanitary or separate facilities;
- The right to choose to be out
Employers may not force transgender employees to come out or forbid employees from coming out about their transgender status or gender identity. Employers cannot disclose an employee’s gender identity without their consent.
Employer Obligations
Employers must provide a safe and non-discriminatory environment to their transgender and gender non-conforming employees.
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Employers must provide an easily accessible and unisex single-stall bathroom for employees who desire more privacy. Employers must also provide an easily accessible, unisex single-stall restroom for employees who desire more privacy and request accommodations. Employers can not force an employee to use a single-stall restroom as part of a policy without violating federal workplace discrimination laws.
Employers who require dress codes and/or grooming standards can enforce the code without violating workplace discrimination laws. The employer must enforce the dress code in a non-discriminatory manner, allowing employees to dress according to their gender expression. Employers may not hold transgender employees to a different dress code than other employees.
What to Do if You Are Being Discriminated Against in the Workplace
Employees facing discrimination in the workplace due to their sexual orientation or gender identity and expression have options to counteract and stop the discrimination.
Employees experiencing sex-based discrimination may attempt to resolve the issue within the company by talking to the person causing the discrimination or using the company’s internal complaint process. The company may have an equal employment opportunity procedure to explicitly cover gender identity and offer guidelines for filing a formal complaint.
Employees may file a workplace discrimination charge with a federal, state, or local office of employment if they choose not to go through the company’s complaint procedure or if the company does nothing to resolve the issue. The employee may file a charge of discrimination with the EEOC. Filing with the EEOC can stop ongoing discrimination and result in monetary damages and changed policies within the company.
Employees must file discrimination charges within 180 days of the discriminatory action, with some states extending the time limit to 3 years. Federal employees must file charges to the EEOC within 45 days of the discriminatory action. Employees may file charges at a regional EEOC field office or state agency in person or by mail. For more information on filing charges, visit the EEOC’s website.
The EEOC will ask the employee and employer to take part in mediation. If mediation does not work or the two parties do not agree to mediate, the EEOC will investigate the charge. Following the investigation, if the EEOC finds a violation of the law, the agency will attempt to reach a settlement between the parties or issue a Right-to-Sue letter permitting the employee to file a lawsuit in a federal court.
Employees who experience sex discrimination may file a lawsuit based on state or local law in state courts without going through the EEOC process.
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