Gender Identity in the Workplace

by | Aug 10, 2015 | Blog

  • Amy Letke

    Amy Newbanks Letke, SPHR, GPHR, is the Founder of Integrity HR, Inc. Amy provides workplace solutions to improve performance, reduce liability and increase profits. She is passionate about helping other entrepreneurs and business owners achieve success. Contact us for more insights - 502-753-0970 or

It seems we aren’t the only ones keeping up with the Kardashians.

Around the time Caitlyn Jenner made her debut on the cover of Vanity Fair, several government agencies released guidance regarding transgender rights and issues in the workplace.

Okay, so we don’t know if it is just a coincidence. But, needless to say, the legal landscape concerning transgender employees is shifting.

And we want to help you make sense of it all.

Here’s the gist: Government agencies are increasingly recognizing gender-identity discrimination in the workplace and addressing issues such as restroom access.

And, although transgender employees are not explicitly protected in every state just yet, it’s a good idea for employers to start keeping up.

So let’s review the legal landscape, and talk about the steps you can take to keep up with the changing laws as a business leader.

Changing Legal Landscape:

The broadening interpretation of laws to include gender identity discrimination:

First let’s note that transgender employees are not mentioned in Title VII of the Civil Rights Act. However, several government agencies have begun to recognize discrimination based on gender identity as a form of “sex discrimination,” which is protected.

In 2012, the Equal Employment Opportunity Commission (EEOC), ruled that discrimination claims based on gender identity, change of sex and/or transgender status can be made under Title VII of the Civil Rights Act.

Also, in 2014, Eric Holder, then U.S. Attorney General, stated that the U.S. Department of Justice “will no longer assert that Title VII’s prohibition against discrimination based on sex does not encompass gender identity per se, including transgender discrimination.”

Okay – let’s decode that legal jargon:  Basically, he said that the U.S. Department of Justice now considers transgender discrimination to be protected under Title VII of the Civil Rights Act as a part of sex discrimination.

Guidance Issued On LGBT Discrimination Claims:

Recently, four federal agencies released an updated guide that outlines the rights available to transgender employees in the workplace in regards to discrimination claims.

As a business leader, you need to read these too!

Audience: LGBT employees

The Agencies: The EEOC, the U.S. Office of Personnel Management (OPM), the U.S. Office of Special Counsel (OSC) and the U.S. Merit Systems Protection Board (MSPB).

The Guide:

  • Titled “Addressing Sexual Orientation and Gender Identity Discrimination in Federal Civilian Employment: A Guide to Employment Rights, Protections, and Responsibilities,”
  • Marks the first revision in 10 years
  • Explains the protections available to LGBT workers in federal government and how they can make discrimination claims, should they feel it necessary

Guidance Issued On Restroom Access:

The Occupational Safety and Health Administration (OSHA) recently published a guide on best practices regarding restroom access for transgender people at work.

Audience: Employers

The Agency:
Occupational Safety and Hazard

The Guide:

  • Recommends that all employees be permitted to use the facilities that correspond with their gender identity
  • Medical or legal documentation of an employee’s gender identity, such as proof of surgeries, should not be required
  • Frowns upon a requirement for transgender workers to use separate facilities
  • Suggests that employers consider providing additional restroom options that would be available for all employees (i.e. single-occupancy gender-neutral facilities and multiple-occupant, gender-neutral facilities with lockable single-occupant stalls)
  • Says employers should be aware of specific laws, rules, or regulations regarding restroom access in their states and municipalities; federal anti-discrimination laws may also apply

What All This Means for Employers:

As we’ve mentioned, not all states have explicit gender identity-related anti-discrimination laws, and federal law is not complete. However, considering the influx of social and judicial recognition of LGBT rights, employers should treat gender identity issues the same as they would for any protected characteristic.

This includes doing what you can to prevent discrimination against transgender employees in your workplace. Should gender-identity discrimination be upheld it court, you could be held liable if you did nothing to prevent the discrimination.

Additionally, you should take any discrimination claims brought forth by transgender employees seriously. Treat the claim as you would for any other form of discrimination, including conducting a proper investigation, etc. (Click here to learn about how we can help with investigations.)

You may also want to review your anti-discrimination policy to ensure it includes gender-identity discrimination.

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