Girls Will Be Boys and Boys Will Be Girls

January 5, 2015

Although the recent lame duck Michigan legislature failed to add gender identity protections to Michigan law, the Equal Employment Opportunity Commission has prohibited discrimination since 2012 against transgender people. “Transgender” is an umbrella term that includes people who are transsexual, or otherwise gender non-conforming. Not all people who consider themselves (or who may be considered by others as) transgender will undergo a gender transition.  

Michigan employers will be increasingly called on to address employees who are transgendered. Just months ago, the EEOC filed a civil rights lawsuit against a Michigan funeral home accused of discriminating against a transgendered employee. Without sensationalizing or trivializing the situation, what response is legally allowed when a male employee arrives at work in a dress? Don’t follow the example of the employer in Glenn v. Brumby, 663 F.3d 1312 (11th Cir. 2011), who learned the hard way that this is a serious employment situation with serious consequences if the wrong decision is made. The employer was sued and learned that it is improper to discharge male employee who is proceeding with gender transition and would begin coming to work as a woman.

Most workplace appearance issues are more mundane. Workplace appearance issues can address dress codes, grooming, piercings, and tattoos, but still implicate race, sex, religion, and other discrimination issues. The wrong decision on an appearance issue can generate unwanted and expensive employment litigation.

Contributed by Donald H. Scharg, member of Bodman PLC.

View the on-demand webinar “Workplace Appearance: Responding to Tattoos, Piercings, and More” with Donald Scharg.