Transgender Employment Discrimination and Title VII Protections

Introduction

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, meaning 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, meaning those transitioning from male to female), FTM (female-to-male, meaning those transitioning from female to male), transsexual (individuals securing surgery and/or hormones), gender-queer (individuals not identifying with the labels of "male" or "female"), and a number of others as well (Singh et al., 2011). 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 involved. For instance, according to Storrow (2002), "the traditional view holds that 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 is 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 indicating that 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 enacted a series of civil rights acts that affected the American workplace in fundamental ways. Of particular interest is Title VII of the Civil Rights Act of 1964, which is perhaps the best known of all federal laws prohibiting employment discrimination. According to Black's Law Dictionary, the Civil Rights Act of 1964 is "the federal statute intended to implement and give further force to basic personal rights guaranteed by the 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.

Issue Synopsis: Limitations of Title VII

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 targeted by Title VII frequently defy easy identification and, once identified, defy simple solutions. On its face, the provisions of Title VII are clear: the Act prohibits discrimination against race, sex, color, creed, national origin, pregnancy, age, disability, and equal pay and compensation, and prohibits sexual harassment within the workplace. The United States Equal Employment Opportunity Commission (EEOC) is the federal agency tasked with enforcing these provisions.

While Title VII has been in existence since 1964 and was modified in 1991, it has failed to completely eradicate discrimination from the workplace. In 2009, a total of 93,277 bias discrimination complaints were filed against employers, at a cost of $376 million in victims' relief (EEOC, 2010, para. 1). Title VII has significantly improved opportunities in the workplace for a wide range of American citizens; however, a number of obstacles remain that adversely affect the ability of some individuals — including transgender individuals — to gain access to meaningful employment opportunities.

Certainly, Title VII is not a cure-all, nor does it protect all workers against wrongful employment discrimination, nor does it adequately or consistently protect the workers it was supposed to cover. Title VII is an admirable and somewhat effective step — but it is "but a first step." In order to address the discrimination of today and potentially eradicate the discrimination of the future, change is needed.

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 currently constructed. For many employees, Title VII is more a symbolic recognition of their situation than a source of substantive support.

Currently, Title VII arbitrarily assigns individuals into classes that are repeatedly 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 a different regime is needed — one that would result in less discrimination and would protect fewer individuals and groups from being left unprotected. Currently, only 43 percent of state employees work in a state with a law prohibiting discrimination based on sexual orientation, and only 31 percent work in a state that also prohibits discrimination based on gender identity. The background and significance of these issues is discussed further below.

Background and Significance

There are a number of laws, procedures, and constitutional amendments — including the 14th Amendment — that affect civil rights and employment practices in the American workplace today. Employment anti-discrimination laws began under Title VII of the Civil Rights Act of 1964, which prohibits employment discrimination based on race, color, sex, religion, or national origin. The Equal Pay Act of 1963 (EPA) protects men and women who perform equal work against sex-based wage discrimination. The Age Discrimination in Employment Act of 1967 protects workers who are over the age of 40. The Americans with Disabilities Act of 1990 prohibits discrimination against qualified individuals with disabilities in the private sector.

These laws collectively prohibit the following employment practices: hiring and firing; compensation, assignment, or classification of employees; transfer, promotion, layoff, or recall; job advertisements; recruitment; testing; use of company facilities; training and apprenticeship programs; fringe benefits; pay, retirement plans, and disability leave; harassment on the basis of race, color, religion, sex, national origin, disability, genetic information, or age; retaliation against an individual for filing a charge of discrimination, participating in an investigation, or opposing discriminatory practices; employment decisions based on stereotypes or assumptions about the abilities, traits, or performance of individuals of a certain sex, race, age, religion, or ethnic group; and denying employment opportunities to a person because of marriage to, or association with, an individual of a particular race, religion, national origin, or disability. Title VII also prohibits discrimination because of participation in schools or places of worship associated with a particular racial, ethnic, or religious group.

The aforementioned anti-discrimination employment laws form the foundation for ongoing controversies concerning employment discrimination against transgender individuals, but there are signs things are changing. According to Christensen (2008), "in the past, courts had declined to extend Title VII protection to transgender employees, arguing that 'sex' referred to biological men and women only, not those who changed or were changing their sex" (p. 21). The outcomes of several precedential cases in this area, as well as pending legislation before the U.S. Congress, indicate that human resource practitioners have much to consider when confronted with transgender-related workplace issues.

For instance, the Employment Non-Discrimination Act (ENDA) has been presented to every U.S. Congress since 1994, and comparable legislation has been introduced since 1974 without success. Most recently, the ENDA enjoyed its best opportunity to become law after the Democratic Party gained the majority in 2006, and by 2007, gender identity protections were included in the legislation for the first time. However, despite increasing pressure from LGBT advocates and congressional sponsors, the ENDA has failed to garner sufficient support to become law. In the meantime, transgender individuals remain subject to discriminatory practices at some point in the employment process in ways that remain better described than understood. Indeed, transgender individuals remain in a veritable legal limbo under the law as it stands, and even the ENDA as modified has not been especially favorable with respect to this subgroup. As one observer notes, "the House passed the Employment Non-Discrimination Act (ENDA) for the first time in 2007 (although without protection for transgendered persons) by a vote of 235–184. ENDA came within a single vote of passage in 1996 in the Senate. Over a decade of generational turnover favorable to gays and lesbians has occurred since the Senate voted" (Mucciaroni, 2008, p. 259).

America's largest businesses have adopted nondiscrimination and equal employment opportunity policies that protect gay and transgender workers from discrimination at all levels of employment. Ninety-four percent of Fortune 100 companies and 87 percent of Fortune 500 companies have policies prohibiting discrimination on the basis of sexual orientation. Sixty-nine percent of Fortune 100 companies and 46 percent of Fortune 500 companies prohibit discrimination on the basis of gender identity.

To date, 21 states and the District of Columbia have passed laws prohibiting public and private employment discrimination on the basis of sexual orientation, and 15 of those states and the District of Columbia also prohibit employment discrimination on the basis of gender identity. These states have gone further than ENDA by outlawing discrimination in housing, health care, and public accommodations. Further, at least 240 municipalities in the United States have enacted local ordinances prohibiting employment discrimination on the basis of sexual orientation, with approximately 60 of these ordinances also prohibiting discrimination on the basis of gender identity.

In 2011, the following states passed employment laws prohibiting discrimination based on gender expression and identity: California, Connecticut, Hawaii, Maryland, Nevada, New Hampshire, and Oklahoma. Regardless of the district or state jurisdiction involved, there are some uniform methods of enforcement for the controlling legislation, as discussed further below.