Transgender Employees Protected By Federal Law Against Discrimination

The Eleventh Circuit recently held that transgender employees are protected by federal anti-discrimination laws, bolstering employee claims for harassment and discrimination in the workplace. Glenn v. Brumby, Nos. 10-14833, 10-15015 (11th Cir. Dec. 6, 2011). While the plaintiff, as a Georgia state employee, brought her claims of discrimination under the Equal Protection Clause, the Eleventh Circuit used broad language to find that such discrimination was also unlawful under Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq. Under the Glenn analysis, the types of prohibited discrimination covered by Title VII in the private workplace would now include discrimination against transgender employees or any employee discriminated against because of his or her perceived "gender nonconformity." Furthermore, many states, cities, and counties have enacted laws prohibiting discrimination on the basis of gender identity or expression.  Most recently, Baltimore County, Maryland joined the jurisdictions that provide such protections.

In light of these developments, employers should take time to revisit their anti-discrimination policies and practices. Employers should refresh their training materials to ensure employees and managers recognize, address, and prevent prohibited conduct, and to ensure neutrality in policies that affect employees - such as gender-based dress codes. When an employee undergoes a gender transition, employees should be instructed to avoid any inquiries regarding a transitioning employee's medical history.

Employers should also be familiar with the various state and local laws that address discrimination based on gender identity or expression. These mandates are being implemented with increasing frequency and may catch employers unaware.