EEOC Provides Transgender Compliance Wish List for Employers
On January 20, 2016, the U.S. Equal Employment Opportunity Commission (EEOC) settled a transgender discrimination and harassment lawsuit against a national employer through a voluntary consent decree. The EEOC brought the action on behalf of Britney Austin alleging that Deluxe Financial Services, Inc. had subjected Ms. Austin to a hostile work environment and disparate treatment because of her sex. Specifically, the lawsuit claimed that Ms. Austin is a transgender woman who transitioned from male to female during her employment with Deluxe and was subjected to sex discrimination and retaliation under Title VII of the Civil Rights Act of 1964 (Title VII), as well as retaliation under the Americans with Disabilities Act (ADA).
In the consent decree, agreed to by all parties, the EEOC enumerated several obligations to which Deluxe agreed which also amount to a wish list aimed at employers generally. According to the EEOC, in order for employers to comply with their Title VII/ADA obligations as they relate to transgender employees, employers should:
- Implement written policies that prohibit unlawful sex discrimination or harassment “based on disability (including gender dysphoria), sex-stereotyping, gender identity, and transgender status.”
- Implement written policies explaining that discrimination or harassment of transgender (and related) individuals “will not be tolerated from its employees, customers, agents, contractors, sub-contractors, clients, and any other persons.”
- Allow employees to change their name and male/female designation in employer’s internal records, computers or communication systems without requiring medical documentation or medical records. (Naturally, this would also require other employees to use the changed name and sex designations.)
- Allow transgender employees to use restrooms “commensurate with their gender identity” without inquiring into the employee’s medical history (i.e., requesting medical records or documentation of sex reassignment surgery).
- Ensure that health benefit plans do not include partial or categorical exclusions for otherwise medically necessary care solely on the basis of sex (including transgender status and gender dysphoria).
- Provide (at least) annual training to all employees, specifically covering what constitutes unlawful sex and disability discrimination, which includes discrimination based on sex-stereotyping, gender identity, transgender status, and gender dysphoria.
- Provide additional training for supervisors and managers on their responsibilities under the employer’s EEO policies, on the employer’s anti-retaliation policy, and on their roles when an employee complains about or reports harassment.
- Provide more in-depth training for Human Resources personnel and those who provide human resources support (i.e., HR assistants and coordinators) regarding Title VII, the ADA, and other federal anti-discrimination laws.
The consent decree also calls for annual training for those tasked with investigating discrimination or harassment complaints, among other things. Additionally, Deluxe agreed to pay Ms. Austin a monetary award (including her attorney’s fees), provide her with letter of reference and letter of apology, and post a notice at all of its facilities for three years. (EEOC v. Deluxe Financial Services, Inc., Case No. 0:15-cv-02646-ADM-SER (D. Minn. 2016)).
Of course, the EEOC’s views in resolving this one case are not baked into the law and it remains to be seen if courts share the Commission’s views. Nevertheless, the Deluxe consent decree provides valuable insight into the EEOC’s thinking and employers should be continually mindful of their obligations toward transgender workers, especially when updating employee handbooks and planning annual equal employment opportunity/harassment training.
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- Alison M. Ballard
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- Glianny Fagundo
- Raanon Gal
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- Bryan F. Jacoutot
- Donald S. Kohla
- Jan G. Marsh
- Steven J. Whitehead