Contract Compliance in the Context of Transgender Discrimination

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I recently received, from former OFCCP colleagues, a copy of an article posted on Buzzfeed.com on December 4, 2013. The headline read, "Federal Official Refuses to Say Whether Office is Protecting Trans Workers." Apparently, the only response the agency was willing to offer was a reiteration that, "OFCCP follows Title VII precedent in everything." The purpose of this article is to shed some light on what that response may actually mean for Federal Contractors.

The question arose because of an April 2012 decision by the Equal Employment Opportunity Commission (EEOC) in the case of Mia Macy v. Eric Holder, Attorney General, Department of Justice (Bureau of Alcohol, Tobacco, Firearms and Explosives), EEOC Appeal No. 0120120821, April 2012. The issue resolved in this case was whether EEOC had jurisdiction over a case alleging discrimination on the basis of transgender status.

What is transgender status? Office of Personnel Management (OPM) guidance provides a useful, though not legally binding definition of the term "transgender":
  • Transgender: Transgender individuals are people with a gender identity that is different from the sex assigned to them at birth. Someone who was assigned the male sex at birth but who identifies as female is a transgender woman. Likewise, a person assigned the female sex at birth but who identifies as male is a transgender man. Some individuals who would fit this definition of transgender do not identify themselves as such, and identify simply as men and women, consistent with their gender identity. The guidance discussed in this memorandum applies whether or not a particular individual self-identifies as transgender.
Diversity & Inclusion Reference Materials, Guidance Regarding the Employment of Transgender Individuals in the Federal Workplace (www.opm.gov)

EEOC concluded in Macy that "...intentional discrimination against a transgender individual because that person is transgender is, by definition, discrimination "based on... sex," and such discrimination therefore violates Title VII." EEOC expressly overturned prior Commission decisions with contrary holdings. (See fn. 16 of the appeal). In reaching its conclusion, EEOC relied on a number of cases holding that sex discrimination is not limited to biological sex, that discrimination because of sex-based stereotyping is sex discrimination, as well as District and Circuit courts who have held that discrimination on the basis of transgender status is sex discrimination. Transgender discrimination can be viewed as either an explicit preference based on gender [I was ready to hire you as a man but not as a woman] or as a manifestation of sex-stereotyping [your behavior does not conform to my idea of gender appropriate behavior].

As noted by OFCCP, it is obliged to follow Title VII precedents in its enforcement of Executive Order 11246. EEOC is the lead Federal agency on employment discrimination. Under Executive Order 12067 it is charged with coordinating federal enforcement in this area to ensure consistency in interpretation of EEO law across the Federal Government. Ensuring a consistent interpretation of what constitutes discrimination on the basis of sex surely falls under this responsibility. Thus, sex discrimination under the Executive Order should be read to include discrimination on the basis of transgender status. So the answer to the question of whether OFCCP protects transgender workers should be a clear, straight forward "yes." Hopefully, when OFCCP issues new guidance on sex discrimination it will make this point clear.

Transgender Discrimination Should be Handled as Sex Discrimination
The explicit coverage of non-discrimination on the basis of transgender status raises a number of compliance issues for Federal Contractors. One thing Macy makes clear is that persons alleging transgender discrimination do have the right to file a sex discrimination charge with the EEOC. This is true even where an agency has a separate process available for transgender discrimination complaints. This was the situation Macy faced. She was directed to a separate process with less protections for pursuing her transgender complaint. The EEOC held that she could not be forced to only use that process but had the right to pursue the Federal process for Title VII sex discrimination complaints either by itself or in addition to any other avenue of redress.

Parallel reasoning leads me to the conclusion that whatever process the Federal Contractor uses internally to resolve complaints of sex discrimination should be open to individuals complaining of transgender discrimination even if there are other avenues of redress established for transgender discrimination issues. A Federal Contractor's failure to treat transgender discrimination the same as any other sex discrimination complaint is likely to be viewed as sex based discrimination.

Non-Discrimination in Hiring
OFCCP should find discrimination in hiring whenever an offer of employment is withdrawn or not extended in the first place based on an applicant's transgender status. The Macy decision cites to Schroer v. Billington, 577 F. Supp. 2d 293 (D.D.C. 2008) where an offer of employment was withdrawn by the Library of Congress after the applicant revealed her transgender status and intent to present herself as a woman despite having presented as a man during the application process. The Court found the Library's various alternative explanations for withdrawing the offer to be pretext since none of the stated concerns surfaced until after the applicant revealed her transgender status.

The message for Federal Contractors from this is that transgender status should have no impact on the hiring process. As Macy notes, gender is only a legitimate consideration in the rare circumstance where it is a bona fide occupational qualification (BFOQ). Even then, the transgendered applicant should be treated the same as anyone else of his or her presenting gender. Since genuine BFOQ's are extremely rare, this will normally not be an issue.

As with other types of discrimination, the discomfort or disapproval of management, co-workers, clients or customers is not a defense to a charge of transgender discrimination. Hiring officials should treat transgender applicants without regard to their transgender status in terms of assessing suitability for employment. For example, in Schroer the hiring officials did not think the occupation of Specialist in Terrorism and International Crime fit with the applicant's status as a transgender woman. Among other things the hiring officials were concerned that neither Congress nor the applicant’s prior military contacts would accept her transgender status. The Library's concerns about the possible discriminatory attitudes of others was not accepted as a legitimate reason for failing to hire Schroer. Likewise, OFCCP is not likely to accept concerns about the reactions of others as a defense to failure to hire based on transgender status.

Hiring officials should refrain from asking questions in the interview process that would not have been asked except for the individual's transgender status. Questions about medical procedures the individual has undergone or asking why the individual would choose to be transgendered have no place in the interview process. The best approach in the interview is to stick to inquiries pertinent to the applicant's capacity to perform the job.

If they have not already done so, it would be advisable for Federal Contractors to include issues related to transgender discrimination in their EEO training as part of their effort to avoid discrimination in the hiring process. This is especially important since the law for years was read as not covering transgender discrimination despite the literal words of the statute.

Anti-Harassment Policies
Given EEOC's conclusion that transgender harassment is inherently gender/sex based harassment one could conclude that a policy against gender/sex based harassment is sufficient to cover transgender harassment. However, just as companies have felt it important to specifically include sexual harassment along with gender harassment, it would likely be prudent to specifically include transgender harassment in your anti-harassment policy. At a minimum, it establishes your company as sensitive to these issues and as proactive in trying to prevent discrimination from occurring in the first place. In terms of compliance, if you include subsets of gender/sex based harassment such as sexual harassment and leave out other subsets of such harassment, it could be viewed as demonstrating a lack of concern for these other forms of harassment in the workplace. This may be of special concern to the extent these policies have been revisited since the various decisions holding transgender harassment to be prohibited under Title VII. At this point, given the absence of OFCCP guidance on this issue the agency may be more likely to advise including such language rather than finding a violation for not including it. Time will tell.

It should be noted that the above referenced OPM guidance includes persistent use of the pre-transgender name and pronouns despite the applicant or employee's preference as a possible form of harassment. So if David is now Diane and presents as a woman, persisting in calling her David and referring to her in masculine pronouns may eventually be viewed as harassing behavior. OPM guidance does not regulate the private sector, nevertheless, it is important to know how the OPM thinks of this issue as it may have influence on how the OFCCP will think of this issue since it follows OPM guidance internally.

Restroom Issues
The gender the individual presents in should, ideally, dictate which facilities are available for the individual to use. Just as EEOC's position has evolved to recognize that transgender discrimination is per se sex based discrimination, it is easy to imagine that in the right social climate it may eventually acknowledge that sex segregated bathrooms can easily be read as inconsistent with Title VII prohibitions on sex segregation. Remember race segregated bathrooms were once as common as sex segregated bathrooms are today.

Society is not there yet. In the current social climate, there is considerable debate on this issue. What we do know is that the transgendered employee should have access to clean and reasonably close by restroom facilities. Some experts have suggested that employees who have an objection to sharing the bathroom with the transgendered individual should be offered another option of a separate facility to use rather than stigmatizing the transgendered employee. It is not clear at present how the OFCCP will handle this issue. While this issue remains unresolved, it is important to ensure that the transgendered worker is treated with dignity and respect and not subjected to harassment concerning this issue. It is not appropriate to make inquiries concerning the individual's genitalia in determining how to resolve this issue.

Recordkeeping
There are a number of issues presented with regard to recordkeeping that have yet to be addressed. Here are my suggestions with respect to recordkeeping. First, many transgendered individuals change their names to reflect their gender identity. If the individual has legally changed his or her name, it should be treated as would any other legal name change. Some individuals may change the name they use on a daily basis but not have changed their name legally. Using a name appropriate to their gender identity may be an important part of their transition from one gender to another or simply important to their gender identity. Flexibility on this issue may be very important for these individuals.

Where an employer can be flexible, it should attempt to respect the individual's desire to use a name consistent with his or her gender identity. There may be some instances where there are legal requirements to use only an individual's legal name. If the individual has not made his or her transgendered status known, it may be in the contractor's best interest to respect the employee's or applicant's need for confidentiality to the extent the legal name may tend to reveal his or her transgender status and limit the use of that name to situations where it is absolutely mandatory that the actual legal name be used. Where the employer has more flexibility, such as name badges, office signage, etc., the name the transgender employee identifies with should be used.

For EEO analysis, my guess is that the individual should be included in the gender consistent with his or her gender identity. If she presents as a woman she should be included as female, likewise if he presents as a male he should be included as a male. If the individual presents inconsistently, sometimes male, sometimes female, he or she should be asked which category they want to be included in. This would seem most consistent with developing case law and EEOC emerging positions on these issues.

Summary
Keep in mind that none of the above is actual legal advice. Also keep in mind that I have no inside information on where OFCCP is going on this issue and there is still no express mention of transgender status in the Federal anti-discrimination laws including Executive Order 11246. This is simply where I think the OFCCP is likely to go, given my experience with the agency and with EEOC, and my ideas of what you can do to be on top of this issue as it evolves. I hope you find it helpful.