In light of the publicity surrounding President’s Trump’s recent tweets regarding transgender individuals serving in the United States military, it is important for employers to be aware of current prohibitions at the state level for employment discrimination based on an employee’s status as a transgender man or woman, as well as the Equal Employment Opportunity Commission’s (“EEOC”) current view that Title VII of the Civil Rights Act of 1964 (“Title VII”) prohibits discrimination based on transgender status. A transgender person is someone whose gender identity differs from the sex marked on their birth certificate.
Under Colorado law,FN1 the Colorado Anti-Discrimination Act’s (CADA) protections against discrimination extend to a person’s “transgender status or another individual’s perception thereof.” FN2 CADA prohibits discrimination in places of public accommodation and employment. FN3 Thus, in Colorado, access to restrooms and other gender-segregated facilities in places of employment is a right protected by Colorado law. Further, under Colorado law, it is unlawful to consider sexual orientation, which includes transgender status, or gender identity when making employment-related decisions, including hiring, firing, or inquiries about an employee’s sexual orientation or gender identity.
Further, at the federal level, the EEOC currently interprets and enforces Title VII of the Civil Rights Act of 1964’s (Title VII) prohibition of sex discrimination as forbidding any employment discrimination based on gender identity or sexual orientation, including transgender status. FN3 Title VII does not explicitly include sexual orientation or gender identity in its list of protected bases. However, the EEOC, relying on Supreme Court and other federal case law holding that employment actions motivated by gender stereotyping are unlawful sex discrimination, interprets the statute's sex discrimination provision as prohibiting discrimination against employees on the basis of sexual orientation and gender identity. FN4
The following are some examples of transgender status-related claims that the EEOC currently views as unlawful sex discrimination:
- Failing to hire an applicant because he or she is a transgender man or woman.
- Firing an employee because he or she is planning or has made a gender transition.
- Denying an employee equal access to a common restroom corresponding to the employee's gender identity.
- Harassing an employee because of a gender transition, such as by intentionally and persistently failing to use the name and gender pronoun that correspond to the gender identity with which the employee identifies, and which the employee has communicated to management and employees.
- Denying an employee a promotion because he is a transgender man or woman.
- Discriminating in terms, conditions, or privileges of employment, such as providing a lower salary to an employee because of his or her status as transgender.
- Harassing an employee because of his or her transgender status. FN5
However, please be aware that there could be changes to these protections at the federal level on the horizon during the Trump administration. For example, last week, in a highly unusual move, the Department of Justice (DOJ) filed an unsolicited amicus brief FN6 in the United States Court of Appeals for the Second Circuit Court, arguing that Title VII does not prohibit discrimination in employment based on sexual orientation. The DOJ’s amicus brief is contrary to the position of President Obama’s administration’s Justice Department as well as the current position of the EEOC, and signals that there may be an upcoming shift in federal policy on this issue. We will continue to monitor this issue and provide updates.
FN1 – In addition to Colorado, nineteen other states, the District of Columbia, Guam, and Puerto Rico have statutes that protect against both sexual orientation and gender identity discrimination in employment in the public and private sector: California, Connecticut, Delaware, Hawaii, Illinois, Iowa, Maine, Maryland, Massachusetts, Minnesota, Nevada, New Jersey, New Mexico, New York, Oregon, Rhode Island, Utah, Vermont, and Washington. An additional two states, New Hampshire and Wisconsin, have statutes that only protect sexual orientation discrimination in the public and private sector. Nine U.S. states have an executive order, administrative order, or personnel regulation prohibiting discrimination only in public employment based on either sexual orientation or gender identity: Indiana, Kentucky, Michigan, Montana, New Hampshire, North Carolina, Pennsylvania and Virginia. An additional four states have executive orders prohibiting discrimination in public employment based on sexual orientation only: Alaska, Arizona, Missouri, and Ohio. The remaining sixteen states do not offer any type of discrimination protections for the LGBT community, although some cities and localities have passed their own ordinances within these states.
FN2 - C.R.S. § 24-34-301(7).
FN3 - C.R.S. 24-34-301 et seq.
FN4 - In Macy v. Dep't of Justice, EEOC Appeal No. 0120120821, 2012 WL 1435995 (April 20, 2012), the EEOC held that intentional discrimination against a transgender individual because that person's gender identity is, by definition, discrimination based on sex and therefore violates Title VII. The Macy decision explains that allegations of gender identity/transgender discrimination necessarily involve sex discrimination. Such cases can be viewed as sex discrimination based on non-conformance with gender norms and stereotypes under the Supreme Court's 1989 decision in Price Waterhouse v. Hopkins, and based on a plain reading of the statute's "because of . . . sex" language. Applying Macy, the EEOC has also held that an employer's restrictions on a transgender woman's ability to use a common female restroom facility constitutes disparate treatment, Lusardi v. Dep't of the Army, EEOC Appeal No. 0120133395, 2015 WL 1607756 (Mar. 27, 2015), that intentional misuse of a transgender employee's new name and pronoun may constitute sex-based discrimination and/or harassment, Jameson v. U.S. Postal Service, EEOC Appeal No. 0120130992, 2013 WL 2368729 (May 21, 2013), and that an employer's failure to revise its records pursuant to changes in gender identity stated a valid Title VII sex discrimination claim, Complainant v. Dep't of Veterans Affairs, EEOC Appeal No. 0120133123, 2014 WL 1653484 (Apr. 16, 2014).
FN5 – What You Should Know About EEOC and the Enforcement Protections for LGBT Workers, EEOC, available at https://www.eeoc.gov/eeoc/newsroom/wysk/enforcement_protections_lgbt_workers.cfm.
FN6 – Amicus briefs are legal documents filed in appellate court cases by non-parties with a strong interest in the subject matter. The briefs advise the court of relevant, additional information or arguments that the court might wish to consider.