Work in the Time of COVID-19: FAQs for Employers

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Since 2012, the U.S. Equal Employment Opportunity Commission (EEOC) has taken the position that transgender individuals are protected from discrimination under Title VII of the Civil Rights Act of 1964 (Title VII). The EEOC has vigorously investigated complaints by job applicants and employees against employers for discrimination based on a person’s transgender status. The EEOC has brought three lawsuits seeking relief on behalf of transgender employees. The most recent case, filed in June 2015, alleges that a long time employee was discriminated against and created a hostile work environment when she presented as a female and informed her supervisors that she was transgender.

The Office of Personnel Management has issued Guidance Regarding the Employment of Transgender Individuals in the Federal Workplace which is also available on the EEOC’s website. It is the EEOC’s position that employers should use the name and gender pronoun that corresponds to the gender identity that the transgender employee identifies with in all employee records and all communications with or about the employee. Additionally, the Occupational Safety and Health Administration (OSHA) has issued a publication entitled A Guide to Restroom Access for Transgender Workers which gives best practices for employers regarding restroom facilities and transgender issues. In its publication, OSHA says employers are required to provide a transitioning employee access to and use of the restroom and locker room facilities consistent with his or her gender identity. The publication also says employers should not require a transgender or transitioning employee to use a single-occupancy, gender-neutral (unisex) facility unless that is the only restroom available to all employees. These rules are not limited to application once a sexual reassignment procedure has been instituted, but apply immediately upon the employee providing notice of his or her new gender identification.

The Fourth Circuit Court of Appeals, the federal appellate court that decides appeals from federal courts in North Carolina, has not ruled yet on the issue of whether Title VII prohibits discrimination based on transgender status. However, prudent employers should ensure they are not stereotyping or discriminating against individuals because they are transgender, because of their gender identity, or because they have transitioned (or intend to transition) and should consult employment counsel for guidance on adverse employment actions involving a transgender job applicant or employee.

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