Protections For Transgender Employees in the Workplace

Overlooking and mismanaging transgender discrimination in the workplace can have disastrous results for both the employer and employee.  Unfortunately, many transgender people have experienced discrimination in the workplace, either because their gender identity does not match the sex they were assigned at birth, or because they are perceived as failing to conform with stereotypical expectations of sex-appropriate appearance, dress, and behavior.

It may seem obvious that firing someone from their job “because of [his or her] sex” would include discrimination against transgender people. However, courts have historically not been sympathetic to transgender people, having traditionally held that they were excluded from protection under federal employment laws.  In recent years, a number of federal district courts have held that transgender or gender non-conforming people are protected under federal sex-discrimination laws such as Title VII. As a result, transgender people now have increased legal protections against discrimination in the workplace.

In addition, in Macy v. Department of Justice, the EEOC held that discrimination against an individual because that person is transgender (also known as gender identity discrimination) is discrimination because of sex and therefore is covered under Title VII of the Civil Rights Act of 1964. In that case, the EEOC (the federal agency in charge of enforcing employment discrimination laws) declared unanimously that anti-trans bias was sex discrimination under Title VII. EEOC Appeal No. 012012821 (April 20, 2012). EEOC rulings like Macy, while not strictly binding on federal courts, are generally accorded some deference.

At the state level, however, many states including Illinois have passed laws that prohibit gender identity discrimination in employment. The Illinois Human Rights Act prohibits employers from terminating or otherwise discriminating against employees or job applicants on the basis of their “sexual orientation.”  775 ILCS 5/1-102. The Act defines “sexual orientation” to include “gender-related identity.” This law protects employees and job applicants from harassment, demotion, dismissal, or other discriminatory employment practices based on the person’s transgender status or gender nonconformity.

Accordingly, employers need to be aware of the legal protections afforded to transgender employees and job applicants.  It will serve employers well to make sure their employment practices and policies comport with these laws designed to protect the rights of transgender people in the workplace.