Transgender people are part of the LGBTQI community but when discussing employment discrimination, transgendered employees are treated very differently. In Texas, sexual orientation is not protected against employment discrimination by federal or state law. Only a handful of cities in Texas have passed ordinances that prohibit sexual orientation as a motivation for employment discrimination.
Transgender-based discrimination is different. It is not associated with sexual orientation but rather with the transgender employee’s acceptance of traditional gender roles. Gender discrimination in employment is prohibited by federal, state and even some municipality law. Today’s post will discuss the basis for gender-based employment protections and how they apply to transgender employees.
Employment discrimination against transgender employees in Texas
Studies estimate that there are roughly half a million LGBTQIA+ individuals in Texas. Of those individuals, further studies indicate alarming employment discrimination against transgender employees and applicants:
- 79% reported harassment or mistreatment at work;
- 26% lost a job;
- 22% were denied a promotion;
- 45% were not hired for a job.
These statistics suggest employers do not understand the legal protections for transgender employees under federal and state employment law. Instead, like most forms of discrimination, employers make insufficient efforts to comply with anti-discrimination laws.
Origins of Protections for Transgender Employees
Under federal and Texas employment law, there are no specific protections for transgender employees on the basis of gender identity. Instead, the EEOC and plaintiff’s attorneys have advanced arguments related to sexual discrimination based upon gender stereotypes. The key case on gender stereotyping is the 1989 Supreme Court case Price Waterhouse v. Hopkins.
In Price Waterhouse, Hopkins was a woman employee who was denied promotion because she was not feminine enough. The partners denied her promotion because she was too aggressive for a woman and did not dress feminine enough. The employer suggested she appear and act more in line with traditional feminine gender stereotypes.
The Supreme Court held this gender stereotyping (sometimes also referred to as sex stereotyping) was a form of sex discrimination because the partners denied Hopkins promotion based on a sex-related factor. Gender stereotyping based on one’s appearance or personality is no different from denying an employee or applicant a job because the position is traditionally “women’s work” or “men’s work” and the sex of the candidate does not match the stereotype of the position. In both situations the employer is using sex-related traits to discriminate against the employee or applicant in an employment decision.
Sex sterotyping and sex discrimination in Texas
Following Price Waterhouse, several federal courts have held that sex stereotyping extends to transgender employees who do not conform their appearance with the gender stereotype for their legal sex. The Fifth Circuit, which presides over Texas federal district courts, has not weighed in on the issue but will make its first ruling on sex stereotyping in a rehearing of EEOC v. Boh Bros. Constr. Co.. This case dealt with same-sex harassment of a male employee who alleged harassment by his supervisor for being “girly”.
Although not directly dealing with sex stereotyping of a transgender employee it will set the standard for future cases brought by transgender employees. Presumably the court will acknowledge the Supreme Court’s position in Price Waterhouse regarding sex stereotyping even if it does not apply it to this plaintiff.
Legal Protections for Transgender Employees in Fort Worth and Dallas, Texas
Transgender employees receive protection by federal and state law against sex stereotyping or gender stereotyping. Following Price Waterhouse, transgender employees fall under the federal Title VII prohibition on employment discrimination under the Civil Rights Act of 1964. Title VII prohibits sex-based discrimination when the employee is the victim of an adverse employment action on the basis of his or her sex.
Title VII also prohibits harassment or a hostile work environment on the basis of sex. This includes harassment motivated merely by the sex of the employee as well as harassment motivated by sexual desire. Within these protections, employees are protected against sex stereotyping or gender stereotyping when the employee suffers an adverse employment action or is harassed because he or she does not fit traditional gender stereotypes for his or her legal sex.
It is worth noting that although gender dysphora is recognized as a disability under the Americans with Disabilities Act, the ADA also specifically excludes gender identity disorders from the ADA’s protections. Texas state law mirrors federal law through Chapter 21 of the Texas Labor Code.
Under the federal and Texas laws, the protections for transgender employees are very narrow. (Some states like Colorado have state employment laws that specifically prohibit transgender discrimination.) Employees receive protection from harassment from co-workers and management on the basis of nonconformity with traditional gender stereotypes. Similarly from suffering adverse employment action on the basis of the same nonconformity.
However, that does not require the employer to provide any additional accommodations to transgender employees, such as allowing the transgender employee to violate the dress code, use the opposite sex’s restrooms, require other employees to refer to the transgender employee by a preferred name or gender pronoun that does not conform with the employee’s legal name and sex.
Dress code issues and transgender employees
A key issue involving transgender employees is the employer’s dress code. If the employer has defined dressed codes for each sex then it does not have to allow a transgendered employee to violate the dress code and dress within the opposite sex’s dress code. An employer can even clarify the policy or make it more rigid to avoid gender identity issues in the work place as long as the policy does not violate other Title VII issues involving dress code (such as making women employees dress in a sexual manner).
What an employer cannot do is arbitrarily enforce the code to target transgender employees. For example, if the employer has a dress code that prohibits men from wearing earrings but it does not enforce the policy so some men employees have earrings, the employer cannot pick the transgender employee to discipline under the policy because the transgender employee’s earrings are more feminine.
Sexual orientation and sex discrimination lawsuits
Another key issue involving transgender employees bringing claims under sex stereotyping or gender stereotyping is sexual orientation. Often transgender-based discrimination comes from both discrimination against the nonconformity of gender with the employee’s legal sex and discrimination against a real or perceived homosexuality. It is extremely common for transgender employees to receive harassment based both on gender identity and sexual orientation.
Under Title VII and the Texas Labor Code, sexual orientation is not a protected status so any harassment or adverse employment action related to the employee’s actual or perceived sexual orientation must be discounted when analyzing a claim brought under a sex stereotyping or gender stereotyping theory.
Employers often argue that all of the discrimination arose from sexual orientation, not the gender identity of the employee. Judges also tend to perceive the discrimination, particularly in harassment cases, as tied first and foremost to the sexual orientation. Transgender employees have a burden to distinguish between what relates to gender stereotype rather than sexual orientation. That makes these cases particularly difficult.
Texas City Ordinances
Five Texas cities (Dallas, Fort Worth, Austin, Houston and El Paso) ban discrimination on the basis of sexual orientation and gender identity. San Antonio prohibited gender identity-based and sexual orientation-based discrimination in employment with the city; but has not passed an ordinance to that effect, so the legal protection under the city’s anti-discrimination policy is ambiguous. In Texas, these are the only legal protections transgender employees have that specifically address gender identity issues in employment.
Outside of these local ordinances, transgender employees must rely on the gender stereotyping prohibition under Title VII and the Texas Labor Code. Under these ordinances, transgender employees have greater protections because they do not require employees to prove the discrimination based on gender identity or stereotyping rather than sexual orientation. So far there have not been prominent lawsuits under any of these ordinances to indicate how judges will interpret their protections; but it is probable that they will be treated like similar laws in other states.
Options for Transgender Employees
If you experienced discrimination then you need to talk to an employment lawyer familiar with your issues. The sex discrimination claims can come to the EEOC and TWC charge process. The more awareness brought about transgender discrimination, the more likely we will see the government expand transgender protections.
If you are transitioning or about to transition, it is important that you work with human resources about your transition. Many employers, especially larger employers, have policies in place to make the workplace transition more fluid. They can work with you to educate your manager and co-workers about inappropriate behavior. Taking those proactive steps can also help your case if you later suffer harassment or other forms of discrimination.