Apr. 25 2012

EEOC Says Federal Anti-Discrimination Law Protects Transgender Employees

Topics: Discrimination, Harassment & Retaliation

This week, the Equal Employment Opportunity Commission (EEOC) issued a ruling giving transgender individuals protections against discrimination in the workplace, concluding that "intentional discrimination against a transgender individual because that person is transgender is, by definition, discrimination 'based on...sex' and such discrimination...violates Title VII."  For California employers, discrimination against transgender employees and job applicants has been prohibited since 2004, when the Legislature passed the Gender Nondiscrimination Bill of 2003 and in so doing amended the Fair Employment and Housing Act to specifically include transgender people.  But California is in the minority of states, as only fifteen other states prohibit employment discrimination based on gender identity.  No federal court has held that Title VII's anti-discrimination provisions apply to transgender people, but the practical effect of the EEOC's ruling is transgender people are now protected by federal law and have legal recourse if they are denied a job or fired because they are transgender.

The ruling came as a result of a discrimination complaint filed by a transgender woman who was denied a job as a ballistics technician at the Walnut Creek, California laboratory of the federal Bureau of Alcohol, Tobacco, Firearms, and Explosives.  The applicant was a veteran and former police detective, and initially applied for the position as a male and was told that she was virtually guaranteed the job.  After she disclosed her gender transition in the middle of the hiring process, the applicant was told that funding for the position had been cut, and subsequently learned that someone else had been hired for the job.

Even though the complaint was brought against a federal agency, the EEOC's ruling applies to both public and private employers alike.  California employers should have already taken measures to ensure against discrimination, including discrimination against those who are transgender.  But given yesterday's decision, companies in all fifty states - including California employers with operations in other states - should take steps to prevent such discrimination.  For example, employers should make sure that "gender identity" is part of the existing company nondiscrimination and anti-harassment workplace policies, and strive to create a non-discriminatory environment in the workplace so as to avoid costly litigation.

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Robin Largent represents employers, including major food and retail companies, in all types of employment litigation: wrongful termination, retaliation, breach of contract, wage and hour (California Labor Code) and unfair competition. She also regularly counsels and advises California employers on issues of compliance with California and federal employment laws.
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