Transgender Protection in the Workplace — PART TWO

posted by Boyd Neil

by Michelle Tsai, senior account supervisor for the corporate group in the New York office. 

This is the second of a two-part post on equal protection for transgender employees in the workplace.

In my last post, I brought up the point that lesbian, gay, bisexual and transgender (LGBT) employees are not protected under Title VII of the Civil Rights Act of 1964, which outlaws hiring or employment discrimination on the basis of the employee’s “race, color, religion, sex, or national origin,” but not specifically sexual orientation or gender identity.  Early court decisions after the Act was passed held that transgender people were not entitled to protection from employment discrimination under Title VII. More recently, however, a new line of cases, based on intervening U.S. Supreme Court decisions, may provide protection for LGBT people in some situations. 

One case in particular speaks directly to the issue of gender identity.  In Price Waterhouse v. Hopkins, 490 U.S. 228 (1989), the Supreme Court held that Title VII was not limited to discrimination on the basis of one’s biological status as a man or a woman but instead prohibits the “entire spectrum” of discrimination on the basis of sex, including discrimination on the basis of gender stereotypes. In Price Waterhouse, plaintiff Ann Hopkins was denied a partnership at an accounting firm because she was deemed to be insufficiently “feminine.” To improve her chances for partnership, Hopkins was told she should “walk more femininely, talk more femininely, dress more femininely, wear make-up, have her hair styled, and wear jewelry.” The employer argued that Title VII did not prohibit discrimination based on gender stereotypes.

The Supreme Court disagreed. “As for the legal relevance of sex stereotyping, we are beyond the day when an employer could evaluate employees by assuming or insisting that they matched the stereotype associated with their group, for ‘in forbidding employers to discriminate against individuals because of their sex, Congress intended to strike at the entire spectrum of disparate treatment of men and women resulting from sex stereotypes.’”

Despite this landmark case, transgender employees continue to struggle to be treated fairly in the workplace.  Case in point:  the passage of the Employment Non-Discrimination Act by the U.S. House of Representatives last November, which was originally written to include protection for transgender employees facing discrimination on the basis of gender identity. However, that protection was stripped out of the bill in a controversial decision by Democratic House leaders, among them lead ENDA sponsor Barney Frank, the openly-gay representative from Massachusetts, in order to ensure its chances for passage.  (Passage is mainly symbolic, since the Senate is not likely to consider the bill, and President Bush has already promised to veto it, should it reach the White House.)

What we are left with is a limited ENDA bill that – if it ever became law – would extend protection from workplace discrimination to straight-looking and acting lesbian and gay employees but leave the most vulnerable transgender employees bereft of such legal protection, as well as non-gender conforming individuals, both straight and gay, such as Ms. Hopkins, who are denied equal career opportunities based solely on their appearance and nonconformity to sex stereotypes. 

However, there is progress being made, and the private sector is leading the way.  Last year, 125 of Fortune 500 companies specifically prohibited job discrimination against transgender employees.  In 2008, I am proud to say that Hill & Knowlton has joined this forward-thinking minority of companies by including gender identity in its current EEO policy. 

Some companies, like Goldman Sachs, go a step further by adding health-insurance coverage of sex reassignment surgery, which can cost an individual anywhere from $5,000 to $150,000 if they paid out of pocket, depending on their particular situation.  That figure doesn’t include hormone and other drug treatments. The company says it made the change as part of a push last year to attract top talent and recruit and retain a more diverse workforce.

Some U.S. states are also filling the federal void by passing their own laws protecting LGBT employees.  Currently, 13 states and the District of Columbia have policies prohibiting both sexual orientation and gender identity discrimination in employment: California, Colorado, Connecticut, Iowa, Illinois, Maine, Minnesota, New Jersey, New Mexico, Oregon, Rhode Island, Vermont, and Washington.  New York is one of seven other states that protect against sexual orientation only.

Protection for LGBT employees aims to the heart of fairness and equality that the U.S. espouses for its citizens.  It’s also a hallmark of good business practice to recruit and retain the best available talent in the global market without regard for characteristics that do not impact job performance.  LGBT employees deserve the right to work and be rewarded for their professional achievements without regard to their personal characteristics or situations.  And straight women and men should not be forced to adhere to outdated sex stereotypes for fear of workplace discrimination.  The business world, like the natural world, thrives on diversity, even if our society is often uncomfortable with it.

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1 Comment


Leo Bottary

Very well done.  A wealth of good information and kudos to companies leading way.

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