Identity and Inclusivity: Issues for Transgender Employees

In this episode, Laura Noble speaks with Dr. Jami Taylor, professor of political science and public administration at the University of Toledo, regarding the current state of anti-discrimination legal protections for transgender employees in the United States.

Discrimination Against Transgender Employees in the Workplace

According to the National Center for Transgender Equality:

  • 90% of transgender employees were harassed or mistreated at work for being transgender, or had to hide they were transgender to avoid such treatment
  • More than 1 in 4 transgender people have lost their jobs due to bias

Forms of discrimination and harassment include things like refusing to hire a transgender person, violating privacy rights, and sexual or physical violence on the job.

Bostock v. Clayton County

In June 2020, in their landmark decision regarding Bostock v. Clayton County, the Supreme Court clarified that federal law prohibits anti-transgender discrimination in employment settings. This case dealt with Title VII of the Civil Rights Act, the primary federal law that addresses employment discrimination in the United States, which states you cannot discriminate against an employee based on their race, color, religion, gender, sex, or national origin. Bostock v. Clayton County posed the question: does the language “because of sex” include sexual orientation and gender identity?

Until June 2020, federal courts had typically applied a narrow interpretation of Title VII to cases involving gay or transgender employees. Because of this precedent, it came as a surprise when Supreme Court Justice Neil McGill Gorsuch, a nominee of former United States president Donald Trump known for his textualist and originalist interpretation of the law, wrote in the Bostock v. Clayton County majority opinion, “The answer is clear. An employer who fires an individual for being homosexual and transgender fires that person for traits or actions it would not have questioned in members of a different sex. Sex plays a necessary and undisguisable role in the decision, exactly what Title VII forbids.”

Limitations of Federal Law

Although the Bostock v. Clayton County ruling confirmed the application of Title VII to gay and transgender employees, the protections provided by federal law are not sufficient. 23 states have included additional anti-discrimination protections that fill the gaps in federal law, such as employers with under 15 employees. Protections are also being provided by employers themselves in order to create safe, inclusive, and productive workplaces. 57% of Fortune 500 companies now have policies that prohibit discrimination against an employee’s gender identity or sexual orientation.

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