There is a growing body of evidence that transgender individuals frequently experience some type of discrimination during the employment process in the United States today. Although there are only a few high-profile cases, there are a significant number of employment claims being asserted. In terms of numbers, the high was reached in 1994 when almost 92,000 discrimination charges were filed with the Equal Employment Opportunity Commission. Since that time, the number of discrimination cases has ranged between 75,000 and 87,000 per year. Even more significant, the number of employment discrimination lawsuits filed in federal court almost tripled between 1990 and 2000. Although not as well documented, constitutional claims against public sector employers also have increased dramatically in recent years. These employment-related claims -- raising such important issues as privacy and equal protection rights -- have forced human resource management generalists to become minor constitutional scholars as they struggle to ensure that personnel policies and decisions follow the dictates of the U.S. Constitution. This paper introduces the public sector human resource manager to the legal landscape where the personnel function now must operate. The first section provides a broad overview of the significant statutory laws governing the human resource management function, focusing on the federal discrimination laws that regulate public sector employment. The second section analyzes the important constitutional issues that bear on the public sector personnel function. The final sections provide a discussion of these issues and recommendations for practitioners.
Table of Contents
History of the Law
Background and Significance
Procedures: Current enforcement methodologies
Results: Case analysis and study
Discussion -- overall assessment of law or regulations
The word transgender is an umbrella term that includes individuals whose gender identity and expression (in other words, their internal and external sense of being female, male, or neither) is not aligned with their anatomical sex (in other words, the anatomical composition of their XX and XY chromosomes) that are naturally assigned to them at birth (Singh, Hays & Watson, 2011). Within this broad umbrella term are a number of diverse subgroups of individuals who self-identify using a wide range of terms, including "MTF" ("male-to-female" which means in the transition from male to female), FTM (likewise, "female-to-male" are those people who are transitioning from female to male), transsexual (securing surgery and/or hormones), gender-queer (not identifying with the labels of "male" or "female"), and a number of others as well (Singh et al., 2001). The term can also include those who engage in part-time behaviors reflective of the opposite sex. For instance, Lee (2011) advises that, "Transgender people live part-time or full-time as members of the other gender [and include] anyone whose identity, appearance, or behavior falls outside of conventional gender norms. . . . However, not everyone whose appearance or behavior is gender-atypical will identify as a transgender person" (p. 27).
Because of this wide range of gender diversity within the transgender community, there remains a fundamental lack of understanding on the part of U.S. society concerning these individuals, often resulting in transphobia and transprejudice (Singh et al., 2011). These types of phobias are caused by a lack of understanding of the basic mechanisms that are involved. For instance, according to Storrow (2002), "The traditional view, the sexed body -- one's inside -- is immutable, whereas gender identity -- one's outside -- is mutable. Yet for the transgendered person, the sexed body -- one's outside -- is regarded as mutable while one's gendered identity -- one's inside -- is experienced as immutable)" (p. 131).
Complicating matters even further for human resource practitioners in the dynamic nature of the law and regulations concerning the administration and adjudication of transgender employment discrimination cases. Furthermore, there is a growing body of evidence that indicates transgender individuals frequently experience discrimination at some point during the employment process. In this environment, identifying opportunities to reduce employment discrimination against transgender individuals and providing human resource practitioners with an overview of the controlling legislation and relevant case law represents a timely and valuable enterprise as discussed further below.
History of the Law
Immediately following the end of the Civil War and again in 1957 and 1964, the United States has enacted a series of civil rights acts that have affected the American workplace in fundamental ways. Of particular interest to this study is Title VII of the Civil Rights Act of 1964, which is perhaps the best known of all the federal laws prohibiting employment discrimination. According to Black's Law Dictionary, the Civil Rights Act of 1964 is a "the federal statute intended to implement and give further force to basic personal rights guaranteed by Constitution. The Act prohibits discrimination based on race, color, age, or religion" (p. 246). As amended, the Act also prohibits discrimination on the basis of national origin (Condrey, 2005). In sum, Title VII applies to all personnel functions including hiring, firing, compensation, promotion, classification, training, apprenticeship, employment referrals, union membership, and the terms, conditions, and privileges of employment. In addition, under Title VII, it is illegal to harass employees because of their sex, race, color, religion, or national origin (Condrey, 2005). Notwithstanding this progress in promoting the civil rights of all Americans, some groups continue to experience discrimination in the workplace as discussed further below.
In essence, Title VII is intended to address institutionalized discriminatory practices and provide an equitable human resource environment in which candidates and employees receive equal opportunity. In this regard, Title VII of the Civil Rights Act of 1964 was developed to, "Remove artificial, arbitrary and unnecessary barriers when such impediments operate invidiously to discriminate against individuals" (Schneid, 2011, p. 41). Therefore, by definition, the barriers that are targeted by Title VII frequently defy easy identification and, once identified, defy simple solutions. On its face, the provisions of Title VII is clear, and the Act prohibits discrimination against race, sex, color, creed, national origin, pregnancy, age, disability, equal pay and compensation, and sexual harassment within the workplace. The United States Equal Employment Opportunity Commission (EEOC) is the federal agency tasked with enforcing the provisions of Title VII in the United States today.
While Title VII has been in existence since 1964 and modified in 1991, it has failed to completely eradicate discrimination from the workplace. In 2009, a total of 93,277 bias discrimination complaints filed against employers at a cost of $376 million dollars for victims relief, (EEOC, 2010, para. 1). Title VII has significantly improved opportunities in the workplace for a wide range of American citizens; however, there remains a number of obstacles in place that adversely affect the ability of some individuals, including transgendered individuals, from gaining access to meaningful employment opportunities.
Certainly, Title VII is not a cure-all nor does it protect all workers against wrongful employment discrimination, and it does not adequately or consistently protect the workers that it was supposed to cover, either. Title VII is an admirable and somewhat effective step. Still, it is "but a first step." Title VII worked in its current form for many years, but in order to address the discrimination of today and potentially eradicate the discrimination of the future, change is needed.
In fashioning a remedy to address all of the different forms and occurrences of workplace discrimination happening in the present day, the "pressing need is not symbolism, but a workable regulatory scheme that actually results in less discrimination" against a wider array of individuals. Employment is the cornerstone for nearly all other rights and privileges in American society -- without employment, an individual likely cannot afford basic necessities such as shelter and nutritious food, cannot hope to obtain a quality education, cannot afford health care, and cannot even contemplate discretionary purchases that enrich and invigorate life. All individuals need equal opportunities to earn a living and to provide for themselves and their dependents. Title VII does not provide such things to all workers as is. For many employees. Title VII is more a symbolic recognition of their situation than substance or support.
Currently, Title VII arbitrarily assigns individuals into classes that time and again are defined and interpreted narrowly to avoid granting employment non-discrimination protections and equal employment opportunities to qualified workers. No regulatory scheme will likely ever eradicate all discrimination in the workplace, but there must be a different regime that would result in less discrimination, and discrimination against fewer individuals and groups of individuals, than Title VII as currently constructed. The unfortunate truth is that discrimination operates in such a way that a categorical approach -- adding or redefining categories as the sole means by which to provide employment nondiscrimination protections -- is not now and will never be enough to combat all of the forms of discrimination and protect the victims thereof. Currently, only 43% of state employees work in a state with a law prohibiting discrimination based on sexual orientation. Only 31% work in a state with a law also prohibiting discrimination based on gender identity. The background and significance of these issues…