Transgender Employees and Title VII

January 4, 2018

Recently, a jury awarded Dr. Rachel Tudor, a transgender woman, $1,165,000 on discrimination and retaliation claims made under Title VII. The protections of Title VII, written in the early 60’s, must now adapt to modern society. Other anti-discrimination laws face similar issues of interpretation. Title VII presents a clear example of changing interpretation over time. With the recent award, this law deserves additional consideration from employers.

Title VII of the Civil Rights Act of 1964 forms the foundation of anti-discrimination law. It generally applies to employers having fifteen or more employees. Many states, including Ohio, have similar laws that provide expanded protections to employees of even smaller employers. Specific local ordinances may also alter an employer’s duties. Importantly, discrimination not prohibited by Title VII, may be prohibited under an applicable state or local law.

As the federal baseline for discrimination in employment, Title VII prohibits discrimination on the basis of race, color, religion, sex, or national origin. These are commonly referred to as protected classes.

Who is in a protected class? Everyone. What qualifies as discrimination? Any adverse treatment or categorization of an employee, which occurs because of their protected class. Importantly, Title VII protections also apply to applicants seeking employment. Common violations of Title VII include: failing to hire or promote an individual; sexual harassment; unevenly applying discipline between groups; and retaliating against employees for reporting, charging, or opposing acts of discrimination.

The text of Title VII is over 50 years old. Now, the old text must be applied to issues unforeseen by legislators in the 60s. One question has recently come into sharp focus: does Title VII protect transgender individuals? Short answer: yes. But, getting there took some time and interpretation. The words “gender” or “transgender” do not appear in Title VII. However, the reasoning for their protection begins with Price Waterhouse v. Hopkins, 490 U.S. 228 (1989). There, the Court extended protections to gender because the employer failed to promote an employee based on stereotypical assumptions of the individual as a female. From this reasoning, courts extended the protection of Title VII to employees facing discrimination because they do not conform to typical presentations of male or female.

The Sixth Circuit Court of Appeals, which handles appeals from Federal courts in Kentucky, Michigan, Ohio, and Tennessee, issued a landmark opinion on the protection of transgender employees under Title VII in Smith v. City of Salem, Ohio, 378 F.3d 566 (6th Cir. 2004). As a result, the precedent in our area clearly protects transgender employees under Title VII.

The Equal Employment Opportunity Commission (“EEOC”) enforces Title VII using a similar interpretation. Their guidance provides the following as examples of unlawful discrimination: failing to hire an applicant because they are a transgender individual; firing an employee who is planning or making a gender transition; denying an employee equal access to the restroom to which they identify; and harassment in the form of intentionally using the pronouns that do not correspond with their gender identity.

All employers should review their compliance with Title VII and other applicable laws. Such reviews should include consideration of discrimination faced by the LGBT community. Employers generally strive to have a discrimination-free workplace for everyone. However, even with the best intentions, everyday employment interactions could result in liability or litigation. Employers considering disciplinary action or termination of any employee should take care to ensure that a discriminatory animus plays no role in the decision. Employers with any doubts regarding possible discrimination should contact an attorney to seek advice specifically tailored to the factual situation at issue.


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