The Next Wave of Workplace Protection: Gender Identity
Bruce Jenner became one of the most widely recognized transgender people in the world when Vanity Fair magazine ran a cover photo of Jenner’s transformation into Caitlin Jenner. Yet, Jenner’s announcement is only the latest high-profile gender transition. Transgender issues have been called into the spotlight by Amazon’s original comedy series Transparent, which follows a father of three as he reveals that he identifies as a woman, and Netflix’s Orange is the New Black which earned transgender actress Laverne Cox an Emmy for her performance. Today, there are an estimated 700,000 people in the US, or about 0.2 to 0.3% of the US population who are transgender.
Transgender individuals are not only high profile celebrities and reality TV stars. They are individuals who work a variety of blue and white collar jobs, in a variety of industries. And one issue that many continue to grapple with – despite the growing attention and acceptance – is workplace discrimination. Transgender people still face widespread mistreatment at work, according to the National Transgender Discrimination Survey. Over 90% of those surveyed reported experiencing harassment, mistreatment or discrimination on the job. Nearly 47% said they had experienced an adverse job outcome such as being fired, not being hired or being denied a promotion.
At the moment, there is no federal law protecting the rights of transgender employees in the US. They can still be fired for being transgender. Further, there is no state-level gender identity protection in 33 of the 50 US states.
Nineteen states (California, Colorado, Connecticut, Delaware, Hawaii, Illinois, Iowa Maine, Maryland, Massachusetts, Minnesota, Nevada, New Jersey, New Mexico, Oregon, Rhode Island, Utah, Vermont, and Washington) and the District of Columbia now have statewide laws that prohibit discrimination based on gender identity in housing.
All of these states except for Massachusetts and Utah also have statewide laws that prevent individuals from being unfairly refused service or entry to public accommodations based on their gender identity.
H= Nine states (California, Colorado, Connecticut, Illinois, Massachusetts, New York, Oregon, Vermont, and Washington and the District of Columbia) have state laws that ensure that transgender transition care is covered by health insurance.
Recent discrimination lawsuits and Equal Employment Opportunity Commission (EEOC) are drawing attention this employment protection issues. Recently, the Transgender Law Center filed a suit in California Superior Court in Orange County against a major bookstore for discriminatory treatment on behalf of a transgender employee. After the employee, who worked with the company for six years, told her employer that she was undergoing gender transition from a man to a woman, the company, according to Court documents, prohibited her from working as a woman and subsequently fired her when she protested.
This suit comes on the heels of a historic lawsuit filed Dec. 18, 2014 by the EEOC regarding discrimination against two transgender employees who worked for small, local companies. One worked for a family-run funeral home in Michigan and the other a local eye care clinic in Florida. Both were fired after informing their employers about their intent to transition. While the eye clinic case was recently settled for $150, 000, the EEOC will defend the first case using Title VII of the Civil Rights Act of 1964 to establish that discrimination based on gender identity could violate the Civil Rights Act.
In 2012, the EEOC ruled that Title VII (of the Civil Rights Act of 1964) prohibits gender identity-based employment discrimination and declared, ”intentional discrimination against a transgender individual because that person is transgender is, by definition, discrimination ‘based on … sex’ and such discrimination …violates Title VII”. This ruling was based on a discrimination complaint filed by the Transgender Law Center on behalf a transgender woman who had been denied a job due to her gender identity.
In 2013, the EEOC ruled in favor of a transgender woman who was subjected to physical and verbal harassment at her job with a federal contractor in Maryland. This was the first time in history that the EEOC investigated allegations of anti-transgender harassment and ruled for the transgender employee.
Most recently, the EEOC charged a Shoreview, Minnesota–based check printing and financial services corporation with violating federal law by subjecting a transgender employee to sex discrimination by prohibiting her from using the women’s restroom.
While many US businesses are grappling with transgender issues for the first time, a growing number of US employers have added sexual orientation and gender identity to their nondiscrimination policies. Nearly 66% of all Fortune 500 companies now include gender identity in their employment protections.
In the 13th edition of the Human Rights Campaign Foundation’s Corporate Equality Index, American workplaces were rated on Lesbian, Gay, Bisexual and Transgender Equality. Of 306 Fortune 500 Companies:
- 89% include sexual orientation in their nondiscrimination policies
- 66% include “gender identity” in their policies;
- 66% of Fortune 500 companies offer equivalent medical benefits between spouses and partners; and
- 34% offer transgender-inclusive health care benefits, including surgical procedures.
Preparation is Key
Businesses of all sizes are advised to continue monitoring the EEOC’s actions and similar state-level legislation as they make their way through the courts. As transgender issues and policies continue to be tested, there are a variety of simple changes and policy reviews that employers can make now:
- Enact a nondiscrimination policy that clearly prohibits discrimination and harassment on the basis of sexual orientation, gender identity and expression.
- Know that pre-employment practices also fall under discrimination laws.
- Dress codes should be gender neutral.
- Enforce the nondiscrimination policy with clearly defined grievance, investigation, and resolution procedures.
- Implement gender transition guidelines to ensure fair and consistent treatment of employees undergoing a gender transition.
- Publicize the nondiscrimination policy and procedures throughout the workplace, including on the company’s website.
- Use gender specific pronouns carefully in all personnel documents.
- Consider unisex restroom access.
- HR records should reflect the transgender individual’s gender identity, not the assigned sex.
- Health insurance benefits should be available from healthcare providers.
Many leading providers of Employment Practices Liability Insurance (EPLI) coverage, including XL Catlin, offer their clients loss prevention services to help mitigate employment practices’ exposure. Prior to providing a policy, for instance, an EPLI underwriter may review in-place policies and procedures and offer loss-prevention services that include in-house or on-line employee training on existing practices, harassment avoidance programs, and other compliance help.
About the Author
Julie Marvel keeps our clients informed about the emerging issues and regulations influencing employment practices litigations. XL Catlin’s Private Commercial unit offers a broad suite of management liability coverages, including EPLI and D&O tailored for small and mid-size private companies.
The information contained herein is intended for informational purposes only. Insurance coverage in any particular case will depend upon the type of policy in effect, the terms, conditions and exclusions in any such policy, and the facts of each unique situation. No representation is made that any specific insurance coverage would apply in the circumstances outlined herein. Please refer to the individual policy forms for specific coverage details. XL Catlin is the global brand used by XL Group Ltd’s insurance subsidiaries. In the US, the insurance companies of XL Group Ltd are: Catlin Indemnity Company, Catlin Insurance Company, Inc., Catlin Specialty Insurance Company, Greenwich Insurance Company, Indian Harbor Insurance Company, XL Insurance America, Inc., XL Insurance Company of New York, Inc., and XL Specialty Insurance Company. Not all of the insurers do business in all jurisdictions nor is coverage available in all jurisdictions. Information accurate as of July 2015.