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Transgender Employees: 3 Things to Know

By Christopher Coble, Esq. | Last updated on

Caitlyn Jenner's appearance on the cover of Vanity Fair is the latest and possibly brightest light to shine on transgender issues in America. And while most of us won't have the fun of hiring Caitlyn herself, we may have transgender people on our staff soon, if not we don't already.

So what are the issues that transgender employees face? And how can employers be best prepared to handle any legal issues that might arise from having transgender employees?

1. The Protections Are Evident.

Courts and the Equal Opportunity Employment Commission (EEOC) have been clear: transgender workers are a protected class under Title VII. Therefore, employers are prohibited from discriminating against transgender applicants or employees, and the EEOC will investigate claims from individuals who think they've been discriminated against based on sex or sexual orientation.

Additionally, the EEOC also prohibits discrimination based on sex-stereotypes, so any discrimination based on gender norms is also illegal. And while EEOC policies only apply to employers with 15 or more employees, 18 states and over 200 cities and counties have explicit laws prohibiting discrimination based on gender identity or expression.

Obviously employers shouldn't discriminate against transgender employees. But they would also do well to make sure that other services they provide their employees, like health insurance, do not discriminate against their transgender employees.

2. The Penalties Are Exacting.

And in case you don't think courts or the EEOC take transgender discrimination seriously, look no further than Cori McCreery, who won a $50,000 settlement for being fired after telling her employer she would be transitioning to a woman. The employer was also required to "obtain professional anti-discrimination training annually for all of its employees; implement and distribute an anti-discrimination policy to all employees; report all future complaints of discrimination to the EEOC; and provide the former employee with a letter of apology and a neutral letter of reference."

3. The Policies Are Essential.

The best way to ensure that you have an inclusive and welcoming workplace and that you don't violate Title VII is to have a clear anti-discrimination policy. Your HR policies should include:

  • The terms "gender identity" and or "gender expression" as a protected category;
  • Sections dealing with "gender transition";
  • A privacy policy to ensure the privacy of your employees (if transition occurred before employment); and
  • A gender neutral dress code.

An experienced employment law attorney can help draft and implement hiring policies that comply with Title VII and make sure your employees are educated on transgender issues and terms.

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