United States: Emergence Of Transgender Status Issues In Workplace Raises Compliance Questions For Employers

Last Updated: May 26 2015
Article by Jessica R. Perry and Daniel J. Corbett

Transgender issues have been grabbing headlines in recent months—perhaps most notably with Bruce Jenner's televised announcement about his gender transition. Beyond the bright lights of pop culture, a wave of litigation and legislation is causing employers to pay closer attention to transgender discrimination and related issues. As we noted in August of last year, there is an increasing trend toward protecting gender identity and transgender status. This post provides an update and a high-level overview of the landscape in this emerging area and offers some tips for employers to minimize risk.

Notably, there has been a recent spate of lawsuits demonstrating the need for employers to become more proactive and educated about transgender legal obligations in the workplace. For instance, the EEOC recently settled one of its first transgender discrimination suits under Title VII. Pursuant to an April 9 settlement with a Florida eye clinic, the clinic agreed to make two $75,000 payments to the former employee, to adopt and implement a gender and transgender discrimination policy, and to train employees on it. The settlement requires the clinic to establish a policy that prohibits it from making employment decisions based on whether an employee is transitioning gender or if the person does not fit into a manager's opinion of gender/sexual orientation.

The EEOC also scored a victory last month when a Michigan federal judge refused to dismiss a complaint brought by a male funeral home director who was fired after informing his employer that he intended to live and dress as a woman full-time, including at work.

In March, Saks Fifth Avenue settled a high-profile transgender discrimination lawsuit in Texas federal court. The case was brought by a former transgender saleswoman. The allegations included co-workers' alleged refusal to use feminine pronouns, as well as being denied access to the women's restrooms at work and being encouraged to dress and act more masculine. The case received national attention after Saks argued in a motion to dismiss that transgender individuals are not covered by federal discrimination laws. The company later abandoned this argument and the case settled.

Perhaps in response to these seemingly favorable outcomes for plaintiffs, additional transgender lawsuits have been appearing in other states as well, including California and Louisiana. A California case, filed against Barnes & Noble on May 6, is still in its early stages in Orange County Superior Court. In that case, a former employee filed suit claiming discrimination and harassment after allegedly being told by her supervisor that her appearance was upsetting customers and to "think of the children."

On the legislative side, efforts underway are more divided. On March 12, Gov. Gary Herbert of Utah signed S.B. 296 into law, making Utah the 19th state to prohibit discrimination in employment based on gender identity. The new law modifies provisions of state antidiscrimination law, including: (1) adding sexual orientation and gender identity as prohibited bases for discrimination; and (2) requiring employers to adopt policies that permit employees to dress and utilize sex-specific facilities consistent with their gender identity. The new law makes it illegal to make employment decisions, such as hiring and firing, based on sexual orientation or gender identity or expression. However, employers are not prohibited from adopting reasonable dress and grooming policies or from adopting reasonable rules regarding sex-specific facilities, provided the rules afford reasonable accommodations based on the gender identities for all employees. The new law will go into effect in July 2015.

A bill filed in the Florida legislature on February 5, aims to invalidate local transgender nondiscrimination ordinances across the state. H.B. 583 would reinstate restrictions on single-sex public facilities to persons of that biological sex. If passed, the law could potentially invalidate a number of transgender protection laws throughout Florida. Miami-Dade County recently became the 21st municipality in Florida to adopt legal protections for individuals based on gender identity and expression. Other municipalities to extend similar protections include Broward and Palm Beach counties, and Gainesville, Key West, Tampa, and Miami Beach. As of this writing, the bill was still in the Judiciary Committee.

As the law in this area continues to develop, here are some general tips for employers looking to be proactive and minimize risk:

  • If you have not already, consider re-writing nondiscrimination and anti-harassment policies to include transgender status, as well as gender identity, expectations, or stereotypes.
  • Allow employees access to restrooms consistent with their gender identity. If possible, add a gender-neutral option or a single-occupant restroom. OSHA and the National Center for Transgender Equality have recently formed a partnership to distribute information to ensure transgender employees have safe and adequate access to restrooms at work.
  • Reexamine gender-based dress codes and make any necessary adjustments.
  • Examine health insurance policies to determine whether procedures related to gender transition are covered.
  • Consider the creation of a gender transition policy/procedure that will allow the employee and someone from the company (e.g., HR) to discuss the timing of any surgery, whether time off will be needed, what name the employee will want to use, whether the employee wants co-workers to know about the change, and any other accommodations or requests the employee might have.
  • Keep tabs on local laws. In addition to the 19 states (and the District of Columbia) that have laws protecting transgender status, there are countless municipal and local laws of which employers should be aware.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Events from this Firm
24 Oct 2019, Speaking Engagement, New York, United States

Orrick’s Lisa Lupion will serve as a panelist for an upcoming CLE program hosted by the New York County Lawyers Association entitled, “New Strategies in Sexual Harassment Investigation.”

24 Oct 2019, Other, Munich, Germany

Orrick and M.M.Warburg & CO invite you to an event on Lean Startups on 24. October.

25 Oct 2019, Speaking Engagement, New York, United States

A joint program of the American Arbitration Association and the Center for Labor and Employment Law at NYU School of Law

Similar Articles
Relevancy Powered by MondaqAI
Lewis Brisbois Bisgaard & Smith LLP
McLane Middleton, Professional Association
In association with
Related Topics
Similar Articles
Relevancy Powered by MondaqAI
Lewis Brisbois Bisgaard & Smith LLP
McLane Middleton, Professional Association
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions