In recent years, the Equal Employment Opportunity Commission and federal courts across the U.S. have increasingly agreed that discrimination against transgendered employees is a form of sex discrimination under Title VII. These positions are based on the concept that Title VII protects employees and applicants against stereotyping based on how persons of a specific gender should behave in the workplace. When a transgendered employee displays behaviors inconsistent with the employer’s opinion of his or her biological gender, changes to terms and conditions of employment based on these biases constitute illegal sex discrimination.
Earlier this month, the Eleventh Circuit Court of Appeals became the latest federal appellate circuit to apply the sex stereotyping theory to a claim of discrimination brought by a transgendered employee. In Chavez v. Credit Nation Auto Sales, LLC, a mechanic transitioning from male to female alleged that her employer terminated her in part based on her dress, objecting to use of a unisex restroom and discussions in the workplace involving her upcoming transition surgeries. The district court dismissed the claim, concluding that it failed to state a recognizable claim for relief under Title VII.
The Eleventh Circuit reversed this decision, reinstating the claim for additional proceedings. In its opinion, the court stated that denying transgendered employees the right to dress and behave in a manner consistent with their gender identity constitutes illegal changes to their terms and conditions of employment. Co-worker reactions to the gender transition do not justify the employer’s actions.
Although the panel’s decision was unpublished, it represents an important confirmation of the growing trend toward recognition of both transgender and sexual orientation discrimination as violations of Title VII. The Eleventh Circuit consists of Florida, Georgia and Alabama, all states without laws protecting employees on these bases. The plaintiff’s position was supported by numerous LGBT organizations that have made judicial recognition of workplace discrimination a top priority nationwide.
This and similar decisions, should prompt employers to examine their own policies and procedures with respect to treatment of transgendered employees. Employers that have not dealt with an employee or applicant undergoing gender reassignment should carefully plan for such circumstance, including examination of restroom and dress policies and modification of discrimination and harassment training to include LGBT issues. Employers that have assumed federal antidiscrimination laws do not cover these categories may face very unpleasant legal surprises.
