Personnel Practices: Transgender Discrimination in the Workplace

Kristen M. Whittle, Esq., Partner, Barton Gilman LLP
Alexandra Rotondo, Esq., Associate, Barton Gilman LLP

Although the transgender rights movement has made substantial progress in recent years, research has shown that transgender individuals across the country remain subject to unequal footing in the workplace. In fact, according to the 2015 U.S. Trans Survey, a report by the National Center for Transgender Equality, transgender people are three times more likely than the remaining U.S. adult population to be unemployed, and nearly 30% of survey respondents who held or applied for a job during that year reported being fired, not hired, or denied a promotion because of their transgender identity.

The following provides a summary of protections for transgender and gender non-confirming individuals in Rhode Island, as well as best practice tips for employers to reduce discrimination claims based upon an employee’s gender identity.

Federal Law
There is no federal law explicitly barring employment discrimination on the basis of gender identity, and the current presidential administration has taken the position that “Title VII’s prohibition on sex discrimination . . . does not encompass discrimination based on gender identity[.]” However, numerous federal courts and the Equal Employment Opportunity Commission have determined that discrimination because an employee or job applicant is transgender or gender non-conforming, or because he or she fails to conform to gender stereotypes, constitutes sex discrimination under Title VII of the Civil Rights Act of 1964. Notably, Title VII only covers business with 15 or more employees, but small businesses
may choose to comply with its requirements as a best practice.

Rhode Island Law
Rhode Island’s Fair Employment Practices Act (FEPA), which applies to all employers with four or more employees, expressly prohibits employment discrimination on the basis of “gender identity,” which is defined as “a person’s actual or perceived gender, as well as a person’s gender identity, gender-related self image, gender-related appearance, or gender-related expression; whether . . . different from that traditionally associated with the person’s sex at birth.” Specifically, FEPA provides that it is unlawful for an employer “to discharge an employee or discriminate against him or her with respect to hire, tenure, compensation, terms, conditions or privileges of employment, or any other matter directly or indirectly related to employment” because of an employee’s gender identity or expression. Importantly, if adverse employment action is taken because an employee is perceived to be transgender or gender non-conforming (whether the person is or not), the employee can still
invoke FEPA’s protections.

Best Practice Tips
In order to comply with applicable law and reduce discrimination claims, employers should:
 Implement a broad non-discrimination policy that prohibits discrimination and harassment on the basis of gender identity, as well as other protected classes. The policy should detail a procedure for employees to raise concerns about discrimination
in the workplace and prohibit retaliation against employees for reporting such concerns.
 Be careful of implementing policies or practices that have a “disparate impact” (or disproportionate effect) on transgender and gender non-confirming individuals, such as strict rules about which bathrooms employees can use. Such practices or policies are unlawful unless the employer can show that they are “required by business necessity.”
 Do not ask questions about an applicant’s gender, gender identity or expression either in a job application or during an interview.
 Be wary of claiming religious exemption from the duties imposed by FEPA. While this statute does not apply “to a religious corporation, association, education institution, or society with respect to the employment of individuals of its religion to perform work connected with the carrying on of its activities,” this exemption is not a carte blanche for an employer to use religious beliefs to justify discrimination.

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