Guidelines Regarding Transgender and Gender Nonconforming Employees

interviewing group
July 27, 2017

An individual’s transgendered status is not yet a “protected characteristic” like race, national origin, or religion under federal or Michigan law. However, the United States Equal Employment Opportunity Commission, courts, and commentators are increasingly concluding that transgendered individuals are entitled to expansive legal protection. That has resulted in more companies taking a proactive approach and instituting formal policies for transgender employees.

For example, in Chavez v. Credit Nation Auto Sales, L.L.C., 2016 WL 158820 (11th Cir. Jan. 14, 2016), the plaintiff was fired for sleeping on the job. When supporting its decision, the employer noted that several other employees had been fired for the same offense. But, less than two months before the plaintiff’s termination, her supervisor told her that her “transgender status” made him “nervous” and would negatively impact the business and coworkers. Additionally, the employer did not take into consideration the plaintiff’s excellent performance appraisal and deviated from its progressive disciplinary policy when terminating her. The Eleventh Circuit Court of Appeals reversed the grant of summary judgment in the employer’s favor and remanded the case for trial.

Cases like Chavez have caused employers to not only include “transgender status” in a description of “protected characteristics” within their Equal Employment Opportunity policies, but go a step farther and enact specific policies addressing transgendered employees in the workplace. One notable example is an international law firm that consulted resources provided by the Human Rights Campaign and the Transgender Law Center when crafting “transgender guidelines” that discuss using appropriate pronouns, policies regarding restroom access, health insurance coverage, and how management/staff can support an individual transitioning gender.

Stand-alone transgender status policies are not required or mandated under the law. However, it is strongly recommended that all harassment and non-discrimination policies explain that such harassment/discrimination on the basis of sex includes transgender status, gender identity, and sexual orientation.

Contributed by Courtney Nichols, Plunkett Cooney's Labor and Employment Law Practice Group Leader.