How the Civil Rights Act Protects Transgender Workers
For generations, transgender individuals facing workplace discrimination have had little legal recourse. While a small number of jurisdictions have passed local anti-discrimination laws, federal laws were rarely used to protect transgender people. However, that is changing.
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Florida Eye Clinic Settles Suit Over Allegations of Discrimination Against Transgender Worker
The Ledger reports that Florida’s Lakeland Eye Clinic has agreed to pay $150,000 in order to resolve a sex discrimination lawsuit filed on behalf of a transgender person in September 2014. The clinic also agreed to adopt a policy that bans discrimination against transgender employees, including those who are in the process of transitioning from one gender to another.
The policy also bans discrimination based on an employee’s not conforming to the clinic’s sex or gender-based preferences, expectations, or stereotypes. According to the The Orlando Sentinel, the lawsuit was originally filed pursuant to the Civil Rights Act.
The Civil Rights Act and Transgender Discrimination
The thing you need to understand about the Civil Rights Act is that it does not explicitly contain protections for transgender employees. Instead, cases like the one in Florida are being framed as sex discrimination claims. This strategy historically did not work particularly well, but courts and administrative agencies are becoming much more sympathetic to the argument that discrimination against a person because of his or her transgender status is discrimination against him or her because of his or her sex.
Federal courts in the Sixth, Eleventh, and D.C. Circuits have all upheld the right to be free from employment discrimination for transgender people under Title VII of the Civil Rights Act. The Equal Employment Opportunity Commission, which is the federal administrative agency in charge of enforcing the Civil Rights Act, has also determined that transgender discrimination is a form of sex discrimination that is forbidden by the Civil Rights Act.
Part of the reason this is all possible is because of a 1989 ruling by the United States Supreme Court. While the highest court in the land had never explicitly held that the Civil Rights Act protects transgender people, it did rule back in 1989 that sex discrimination includes discrimination based on “sex stereotyping.” This means that an employer cannot discriminate against you because they perceive you to not conform to gender stereotypes. In effect, this is exactly what transgender discrimination is: discriminating against a person because he or she does not fit into the gender roles an employer expects them to fit into. This means that protection for transgender individuals under the Civil Rights Act is the next rational step in the analysis.
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Dan Kalish is a partner and founder of HKM Employment Lawyers (www.hkm.com), an employment law firm that represents individuals nationwide. A graduate of Harvard College and Yale Law School, Dan frequently speaks and writes about issues related to employment law on hkm.com/employmentblog.