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Transgender Issues: Legal Update
Michelle E. Phillips, Esq. Jackson Lewis P.C. | White Plains, NY
[email protected] 914-872-6899
December 2, 2015
Transgender Terminology
• Gender identity vs. Gender expression.
• Sexual orientation vs. Transgender vs. Cisgender.
• Transitioning.
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What Would You Do?
You heard a rumor that a transgender MTF employee is showing up to work as a female on Monday. What are your next steps?
A. You contact the transgender employee.
B. You contact the transgender employee’s manager.
C. You wait until Monday to confirm whether or not the rumor is true.
D. You wait until there is a complaint before taking any action.
3
What Would You Do?
Other staff are complaining that they are uncomfortable with a “man” using the women’s restroom and they have “rights” too. Whose rights trump?
A. The transgender woman has the right to use the women’s bathroom.
B. The cisgender females have the right to exclude the transgender woman from using the ladies room.
C. The transgender woman should be assigned to a separate restroom.
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What Would You Do?
A transgender FTM employee locks the men’s restroom whenever he uses it. Other staff complain that they have been denied access to the restroom. How do you handle the staff complaint?
A. You allow the transgender male to continue to lock the men’s restroom.
B. You post a sign indicating when the transgender employee is using the men’s restroom.
C. You approach the transgender male and investigate why he is locking the restroom.
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What Would You Do?
An applicant checks “Female” on the employment application and presents as female during the job interview. “She” is hired but presents as a male at orientation, provides a male name on the new hire paperwork but no legal document with a male name. What do you do?
A. Fire the new hire based on falsification of a company record.
B. Announce his transition at a staff meeting and change all the personnel records, email address, name badge from female to male.
C. Use the male name/pronouns when addressing the transgender male and change his email address/name badge to his male name.
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Overview of Federal Gender Discrimination/ADA Laws
• There is no federal law that protects against discrimination based on gender identity or expression.
• Title VII of the Civil Rights Act of 1964 prohibits discrimination “because of . . . sex.”
• The Americans with Disabilities Act excludes “gender identity disorders not resulting from physical impairments” from coverage.
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Macy v. Holder (EEOC Apr. 20, 2012)
• Job applicant Mia Macy applied for a job at the Bureau of Alcohol, Tobacco, Firearms, and Explosives (“ATFE”).
• When Macy applied for a job, she presented as male.
• After Macy informed ATFE that she was transitioning from male to female, ATFE withdrew the job offer and told Macy that another applicant had been hired who was farther along in the background check process.
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Macy v. Holder (Cont.)
(EEOC Apr. 20, 2012)
• Macy filed a Charge alleging that the reasons proffered for not hiring her were pretextual and that the true reason was because of her “sex, gender identity (transgender woman) and on the basis of sex stereotyping.”
• The EEOC reasoned that Macy could establish a viable sex discrimination claim on the ground that: o ATFE believed that biological men should present as men and wear
male clothing; or, o ATFE was willing to hire a man, but not a woman.
• Either way, the EEOC concluded, transgender discrimination is discrimination “based on...sex” and violates Title VII.
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EEOC v. Lakeland Eye Clinic (M.D. Fla. 2014)
• Six months into his employment, Branson started wearing feminine attire to work, including makeup and women’s tailored clothing. Co-workers noticed and snickered and rolled their eyes.
• Lakeland confronted Branson about her changing appearance. She explained that she was undergoing a transition from male to female.
• Lakeland’s managers and employees continued to make derogatory comments about her appearance, and the ostracism intensified. The physicians stopped referring clients to Branson. Two months later, Defendant discharged Branson, telling her that the position was being eliminated. Branson was replaced by a male employee.
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EEOC v. RG & GR Harris Funeral Homes
(E.D. Mich. 2014)
• Aimee Stephens was employed by Defendant since 2007.
• In July 2013, Stephens notified her employer and her co-workers that she was undergoing a gender transition from male to female and intended to dress in appropriate business attire as a woman and asked for their support. Two weeks later, Defendant fired Stephens, telling her that what she was “proposing to do was unacceptable.”
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Gender Transition Plan
The transition plan should address the following issues:
• Timeline
• Dress code
• Company resources
• Identification changes
• Security clearance issues
• Facilities usage
• Appropriate norms of conduct
• Sensitivity training
• Complaint procedures
• Plan modifications
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Questions?
Michelle Phillips (914) 872-6899
Pedro Forment (305) 577-7604
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Thank You!
WWW.JACKSONLEWIS.COM
