Protecting Transgender Employees in the Workplace: Landmark Legal Precedents
The Trump administration has called for the implementation of many actions targeted against transgender citizens over the past two years. Such actions include a movement to deny transgender people positions in the military, a call for the Centers for Disease Control and Prevention to renounce the use of the word “transgender”, and, most recently, the advent of the Conscience and Religions Freedom Division under the Department of Health and Human Services, which states that religion can be cited as reason for denial of medical care.[1] The Trump administration’s statements concerning the transgender community reflect the current widespread problem that exists in the workplace. About 90% of transgender people have reported some form of discrimination while at work.[2] In turn, many transgender people have been laid off purely due to their status as a transgender citizen. In evaluating the legality of the discharge of a transgender employee, the Supreme Court decision in Price Waterhouse v. Hopkins regarding gender stereotyping is often cited by the employee’s counsel. Although this case did contribute to protecting free expression of gender in the workplace and the success of future court cases concerning transgender employees, it seems that, with the negativity of Trump’s language towards transgender citizens, hesitancy of both local and national courts to recognize transgender rights will only increase.
Argued in the Supreme Court in the late ‘80’s, Price Waterhouse v. Hopkins is a groundbreaking case that deemed gender stereotyping a potential act of gender discrimination, which is illegal under Title VII of the Civil Rights Act of 1964. Essentially, the litigation involved the promotion of Ann Hopkins as a partner in the prestigious Price Waterhouse firm due to her impressive performance as an employee. After being promoted, however, she was subsequently refused partnership as she was “too masculine” according to the standards of the other partners. The Supreme Court deemed the case discriminatory, given that Hopkins would have remained a partner if her gender were reversed.[3]
Not only has this case been a trailblazer for the fight towards gender equality in the workplace, but it has also fronted the argument against intolerance of transgender employees. It is often argued in cases of transgender workplace discrimination that mistreatment occurs due to an unjust reaction by employers towards an individual’s gender expression. This is reflective of the illegality of gender discrimination as concluded in Price Waterhouse v. Hopkins and implemented in Title VII of the Civil Rights Act of 1964. The argument of gender discrimination infringement found a victory in the court case Schroer v. Library of Congress. The case involved a woman named Diane Schroer who took a job as a Terrorism Research Analyst at the library of Congress. After informing her supervisor that she would undergo a gender transition, her job offer was retracted. Given Schroer’s impressive list of qualifications for the job, it is apparent that she was denied a job solely based on her gender identity. Discrimination based on sexual identity and the way one presents his or herself as male or female is deemed illegal under Title VII due to the decision made in Price Waterhouse v. Hopkins.[4]
Schroer v. Library of Congress resulted in a victory for transgender rights in the workplace in the United States District Court; however, such outcomes do not always prevail. In Etsitty v. Utah Transit Authority, a woman named Krystal Etsitty pressed charges against Utah Transit Authority (UTA) on the basis of gender discrimination. Etsitty was hired by UTA to drive buses. After informing her boss that she would be going through a gender transition, Etsitty was fired on the basis that her transition created an “image issue.” Since Etsitty had not yet undergone gender reassignment surgery due to financial reasons, the UTA supervisor was concerned with her use of female designated restrooms at various stops along her route. On the premise of the illegality of gender discrimination as presented in Price Waterhouse v. Hopkins and implemented in Title VII, Etsitty’s team argued that she is entitled to protection as a biological male. She was discriminated against because she did not conform to gender stereotypes. However, this argument failed, and the decision by the UTA was deemed lawful:[5] The United States District Court for the District of Utah ruled against Etsitty, reasoning that “discrimination against a transsexual based on the person's status as a transsexual is not discrimination because of sex under Title VII.”
Although Price Waterhouse v. Hopkins made gender stereotyping illegal through Title VII, protection against discrimination on the basis of sexual identity is not always guaranteed under its ruling. Courts deny Price Waterhouse claims in the case of transgender discrimination because “there is a difference between a woman who does not behave femininely and a man who is altering his appearance to look like a woman,” a quote describing the reasoning behind Etsitty’s loss in the court of law.[6] Due to this reasoning, a number of federal circuits refuse to allow the rulings of the illegality of gender discrimination in the workplace to apply to transgender discrimination under Title VII.[7] In order for transgender employees to be protected in the workplace, it is necessary for violations of Title VII to include prejudice against those undergoing a gender transition. Otherwise, rulings of inequity will vary case by case and court by court. With the current marginalizing rhetoric employed by president Trump, it is possible that the already exorbitant rate of misconduct against transgender employees will increase and many will face unemployment.
Price Waterhouse v. Hopkins was a landmark case in furthering gender equality in the workplace. Its effects on Title VII deemed gender discrimination illegal, which should apply to transgender discrimination. However, some courts allow for the lack of specific language surrounding transgender rights in the workplace to excuse injustice against transgender workers. This perpetuates transgender discrimination and will only be furthered under the Trump administration, with one clear example being the recent the announcement by the U.S. Department of Education that complaints of prejudice by transgender students will be dismissed.[8] There is no reason to assume that this clear bigotry will not be further reflected in the U.S. court system, making the rights of transgender citizens in the workplace seemingly unattainable.
[1] “The Discrimination Administration,” National Center for Transgender Equality, https://transequality.org/the-discrimination-administration.
[2] Burns, C. and Krehely, J., “Gay and Transgender People Face High Rates of Workplace Discrimination and Harassment,” Center for American Progress, https://www.americanprogress.org/issues/lgbt/news/2011/06/02/9872/gay-and-transgender-people-face-high-rates-of-workplace-discrimination-and-harassment/.
[3] Price Waterhouse v. Hopkins.
[4] Schroer v. Library of Congress.
[5] Etsitty v. Utah Transit Authority.
[6] Elkina, D., The Constitutionalism Implications of Bathroom Access Based on Gender Identity: An Examination of Recent Developments Paving the Way for the Next Frontier of Equal Protection, http://heinonline.org/HOL/Page?handle=hein.journals/upjcl9&div=29&g_sent=1&casa_token=&collection=journals.
[7] Koch, K. and Bales, R., “Transgender Employment Discrimination,” UCLA Women's L.J. 243 (2008), http://heinonline.org/HOL/Page?handle=hein.journals/uclawo17&div=11&g_sent=1&casa_token=&collection=journals.
[8] “The Discrimination Administration,” National Center for Transgender Equality, https://transequality.org/the-discrimination-administration.