Federal Law Protects Stereotyped Transgender Employees


By Scott M. Wich December 18, 2018

​The primary federal law governing sex discrimination, Title VII of the Civil Rights Act of 1964, prohibits discrimination based on sex-based stereotyping. As an employer in Colorado recently learned, Title VII's protections against discrimination arising from sex-based stereotypes also apply to transgender employees.

In this case, as alleged in a Title VII complaint brought by the Equal Employment Opportunity Commission (EEOC), a transgender man applied for a managerial position in May 2014. During the interview process, the applicant wore traditional male clothes and had a goatee. The interviewer stated that the applicant would be offered the job if he could pass the company's pre-employment testing.

Thereafter, the applicant completed a background-check consent form. On the form, the applicant provided his birth name, which was a traditionally female name, and marked that his gender was female. The applicant received a call from the company questioning whether the gender was correctly marked, and he confirmed the gender selection. The company representative responded, "Oh, that's all I need." The applicant was eventually told the job was given to another individual.

The EEOC found cause to believe the company had discriminated against the applicant based on sex and filed a lawsuit on his behalf. In turn, the company moved to dismiss the lawsuit on the basis that Title VII does not protect transgender employees. The federal district court denied the motion.

[SHRM members-only toolkit: Managing Gender Transition in the Workplace]

The court held that, while Title VII does not protect transgender individuals, it does protect individuals (transgender or otherwise) from discrimination based on sex stereotypes or gender nonconformity. The applicant, while biologically female, dressed and appeared as a man during the interview process. After the applicant's biological gender was revealed, the position was awarded to a different individual. The court concluded that "these alleged facts permit a reasonable inference that [the applicant's] traits, behavior, or appearance at the interview, in not conforming to the stereotypical expectations of the sex he indicated on his background check form, affected the [hiring] manager's decision."

Because the facts, as alleged in the complaint, could lead to the conclusion that the hiring manager declined to offer employment to the applicant because of sex-based stereotyping (i.e., the female applicant did not appear and act in a stereotypically female manner), the court concluded that a Title VII claim could be pursued.

EEOC and Woodward v. A&E Tire, D. Colo., 17-cv-02362 (Sept. 5, 2018).

Professional Pointer: Issues of gender-based discrimination in the workplace continue to evolve. Human resources professionals are well-advised to keep up-to-date on federal and state developments in this area of the law.

Scott M. Wich is an attorney with Clifton Budd & DeMaria LLP in New York City.


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