In House - The FindLaw Corporate Counsel Blog

In-House Counsel: Is Transgender Discrimination on Your Radar?

In a two-part series in Inside Counsel, Jeff Beemer of Dickinson Wright PPLC talked about transgender discrimination as one of the an up-and-coming issues for the EEOC.

Indeed it is, and even though you might not think about it, transgender discrimination most likely falls into Title VII's prohibition on gender discrimination. The U.S. Supreme Court has yet to say so, but the EEOC and two federal circuit courts agree that it does.

Gender Stereotyping

While the Supreme Court has never recognized transgender discrimination as actionable under Title VII, several federal circuit courts of appeal have extended its decision in Price Waterhouse v. Hopkins to encompass transgender discrimination.

The case dealt with a woman who was discriminated against on the basis of sex in the process of becoming a partner at a Washington, D.C., branch of the accounting firm Price Waterhouse. The other (male) partners said in her evaluations that she was too masculine and not ladylike enough.

The Supreme Court said that making adverse employment decisions based on an employee's perceived failure to act in conformity with a gender stereotype was a Title VII violation.

Extending the Doctrine

That was 1989. Over the years, courts have gradually extended that reasoning into transgender discrimination cases under Title VII -- the Ninth Circuit in 2000 and the Sixth in 2004. Transgender discrimination could be seen as a form of discrimination based on gender stereotypes (transgender men and women are perceived as not behaving like men and women "should" behave), and consequently, via Price Waterhouse, Title VII forbids such discrimination.

In 2012, the EEOC itself concluded that Price Waterhouse can be used to apply Title VII to transgender discrimination in a case brought by a police detective who was transitioning from male to female. She applied for a job at a police crime lab in Walnut Creek, California, and basically got the job -- all she had to do was complete a background check. When she requested that the information on the background check form be changed from "male" to "female," then explained her transition, she was suddenly informed that the job was no longer available.

Even though the Supreme Court hasn't yet weighed in on this fairly radical extension of Title VII, with the EEOC wholeheartedly endorsing it -- and with transgender employees becoming more common and (hopefully) more accepted -- companies need to be aware that these employees are as protected by the Civil Rights Act as anyone else.

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