What are the different types of unlawful discrimination?
Like the term “harassment”, “discrimination” has several meanings and connotations. For purposes of employment law, discrimination (differing treatment of an individual or group) is unlawful if it is based in whole or in part of a person’s protected status. Conversely, discrimination, which may be unethical or even immoral, does not give rise to a legal claim for which a party may seek redress with an agency or in court. Stated simply, the law provides redress only for those characteristics or status a legislature has deemed protected by statute. It is also important to note that there are layers of legislative protection that can be found in each separate state through City ordinances, state statutes and federal laws, along with the myriad of court cases applying this body of legislation.
Currently, the most common protected statuses include: race, national origin, sex, disability, age, religion, affiliation or non-affiliation with a labor union, whistleblowers (public employees or employees of publicly traded companies), military service, veterans’ status, and work status. In addition, sufficiently severe harassment on account of the protected status listed is considered a form of discrimination much the same as sexual harassment.
Some protected characteristics do come about through an extension of common law, such as state public policy exceptions to the at-will employment rule or the interpretation of an existing statute. Currently, the Supreme Court of the United States is looking at the issue of whether Title VII’s prohibition of discrimination on the basis of sex extends to sexual preference and transgender status. I co-authored a short article in 2010 mapping the trajectories that could lead courts to extend protection or result in the issue being “sent” to Congress. See TitleVII’s Transgender Trajectory: An Analysis of Whether Transgender People are a Protected Class under the Term “Sex” and Practical Implications of Inclusion, 15 Tx J. Civil Liberties and Rights No. 2 (Spring 2010), (University of Texas, Austin).
How are transgender employees protected when it comes to workplace discrimination?
This depends on the state and local government under which they reside. Several cities and states have adopted explicit ordinances and statutes that prohibit discrimination on a person’s transgender status. In addition, a state may have a public policy exception by virtue of the state’s case law. This may soon change depending on the case pending before the Supreme Court.
How can employers support transgender employees?
First and foremost, employers should listen to their employees who are transgender or come forward to announce that they intend to make a change. While this issue has made a lot of news, employers generally are not familiar with all the issues that arise under these circumstances. Second, maintaining privacy to the extent possible and prohibiting workplace harassment on the basis of an individual’s transgender status. It is important to recognize the fact that employers can always adopt and enforce policies that provide more protection than existing law. Employers and business owners who feel strongly about the issue should consider policy changes and training on regarding those changes.
From the above, what rights do transitioning employees have when regarding work absence, toilets and changing rooms, etc.?
The federal statute prohibiting disability discrimination and requiring accommodation (ADA) has specific exclusions that some courts have ruled exclude transitioning. This is by no means a consensus on the issue, but readers should be aware of the disparity. However, as noted there are several state statutes that prohibit discrimination on the basis of transgender status, to the extent if an employer allows time off or paid time off for other medical conditions, then they cannot single out transitioning employees. Also, transitioning employees should review the Family Medical Leave Act and state or local mandated leave.
As far as accommodating the workplace, this issue generally gets more attention than what is generally warranted. For example, single-stall bathrooms, private changing areas and modifying company dress codes can avoid a lot of problems. Stated simply, most issues of this kind can usually be addressed in a relatively simple fashion. Nonetheless, the use of multi-stall bathrooms, common changing areas, sharing hotel rooms during business travel etc., do raise more complex issues that should be carefully considered.
It has been reported that more than one in four transgender people have lost a job due to bias, and more than three-fourths have experienced some form of workplace discrimination[1]; from a lawyer’s perspective, what do you think should be done to change this?
Again, employers can take the lead regarding their own policies and how they want their work environment to develop and operate. Second, lawyers in jurisdictions which have not adopted ordinances or statutes regarding transgender status may wish to consider getting involved personally or through their state and local bar associations to promote awareness and the adoption of legal protections. Third, lawyers who regularly represent employers or employees should take the time to educate themselves on this and other gender-related issues and their effect on the workplace.
Shawn D. Twing, Partner
Mullin Hoard & Brown, LLP
500 S. Taylor, Suite 800
Amarillo National Bank Plaza II
Amarillo, Texas 79101
806.372.5050
Shawn D. Twing is an Equity Partner at Mullin Hoard and Brown LLP and works at the Firm’s offices in Amarillo and Dallas, Texas. Mr. Twing has been a board-certified labor and employment law specialist since 2000 and maintains a multi-jurisdictional trial and transaction practice. In addition to law practice, Mr. Twing taught law classes to undergraduates and MBA candidates and he regularly writes and lectures on labor and employment law issues. Mr. Twing graduated with honors from the University Of Arkansas School Of Law in 1993. He is admitted to practice in Texas, Oklahoma and Arkansas, as well as, several federal District and Appellate Courts.
