As a follow up to my earlier posts here, here and here, Title VII is now, quite regularly, being interpreted to protect transgender employees under its gender identity or sex stereotyping protections.
Most recently, in the U.S. Court of Appeals for the Eleventh Circuit (which includes Florida), that Court has found that a transgender mechanic may have been fired, in part, based on sex. The mechanic, Jennifer Chavez, had never been disciplined prior to undergoing her gender transition.
As she began her transition, she was directed by her employer not to wear a dress or anything “outlandish” to and from work and she was directed to cease using a unisex restroom that other female employees were permitted to use. Ms. Chavez also alleged in her lawsuit, that her employer skipped progressive discipline steps set out in the employer handbook and that her termination for sleeping on the job was pretextual.
The lower court in this matter granted summary judgment to Ms. Chavez’s employer, but the Eleventh Circuit found that her circumstantial evidence was sufficient to raise a Title VII mixed-motive claim. Mixed-motive means that an employer had both legitimate and illegitimate reasons for making an employment decision.
What is the take away for employers? At this point, a trend has become a tide. Employers should assume that transgender employees will be protected under Title VII.
As such, policies and procedures should be updated. More importantly, managers and supervisors need to be educated that transgender employees are protected under gender identify and sex stereotyping case authority. Transgender employees should be permitted to use the bathroom of their choice, they should be permitted to dress in accordance with the employer’s policies for the gender that they identify with (meaning if women in your workplace can wear dresses and skirts so can a transgender employee who identifies as female). Do not wait for your first transgender employee, rather you need to prepare and educate now.
Dori K. Stibolt is an attorney with the law firm of Fox Rothschild LLP. Dori defends and counsels management in labor and employment litigation matters pertaining to wage and overtime claims, discrimination, harassment, retaliation, leave/restraint, and whistle-blower claims. You can contact Dori at 561-804-4417 or firstname.lastname@example.org.