Cultivate a Workplace of Respect

Respecting all employees fosters a healthy workplace and keeps lawsuits at bay.

December 17, 2012

Transgender individuals make up no more than 1% of the U.S. population, but they face disproportionately high levels of mistreatment at work.

A recent survey of 6,450 transgender people revealed that 47% experienced an adverse job outcome—being fired, not hired, or denied a promotion—and 90% reported on-the-job harassment.

Employers may be liable for discrimination against transgender employees under federal, state, and local laws.

Therefore, credit unions should foster a work environment that’s respectful of all people regardless of their gender identity (a person’s sense of self as male, female, or nongendered) and gender expression (how people communicate their gender identity, such as through dress).

Some states, including Oregon, Nevada, Connecticut, and California, have antidiscrimination laws that expressly protect employees from discrimination based on gender identity or gender expression.

Although federal law doesn’t expressly address transgender discrimination, the Equal Employment Opportunity Commission (EEOC) last spring issued a decision that discrimination against people with gender nonconformity is a form of sex discrimination prohibited under Title VII of the Civil Rights Act of 1964 [Macy v. Holder, Appeal No. 0120120821 (Apr. 20, 2012)].

The complainant in that case, Mia Macy, a veteran and former police detective, was denied a job at the federal Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF) after disclosing she was transgender.

Macy applied for the position as male—because she had not yet completed her gender transition—and was offered the job subject to the outcome of a background check.

Before the application process was completed, Macy informed the ATF of her change in gender and name. Five days later, Macy was told that funding for the position had been cut. She later discovered that someone else was hired for the job.

Macy filed a complaint with the ATF, arguing that its actions violated Title VII. The ATF refused to process the complaint on grounds that Title VII didn’t cover discrimination against transgender people.

Macy appealed the determination to the EEOC, which ruled that Title VII’s prohibition against sex discrimination includes discrimination against transgender employees.

The EEOC explained, “when an employer discriminates against someone because the person is transgender, the employer has engaged in disparate treatment related to the sex of the victim.” Title VII applies to employers with 15 or more employees.

The EEOC’s interpretation provides guidance to courts when they consider employment discrimination complaints brought by transgender people.

This means that even in states without antidiscrimination laws specifically prohibiting discrimination on the basis of gender identity or expression, employers may be liable for violating Title VII where they fail to prevent discrimination against individuals who are gender nonconforming.

Credit unions can create a respectful workplace by:

  • Implementing and enforcing anti-harassment and discrimination-free workplace policies that include gender identity and gender expression.
  • Educating all employees that discriminating against or harassing an individual due to gender nonconformity is prohibited.
  • Asking employees who are transitioning to a different gender how the credit union can ease the workplace transition.
  • Respecting a transgender employee’s privacy by not asking questions about the transition that don’t relate to the workplace.
  • Allowing transgender people to use the bathroom that’s consistent with their expressed gender. The transitioning employee should decide when it’s appropriate to switch bathrooms.

Where feasible, make a single-stall, gender-neutral bathroom available. Requiring a transgender employee to use a separate bathroom, however, is discriminatory.

Cultivating a workplace that respects people regardless of their adherence to gender stereotypes fosters a healthy workplace—and keeps discrimination lawsuits at bay.

TRISH WALSH is an associate at Farleigh Wada Witt, Portland, Ore.