Article of Interest

Title VII Protections: Issues for the Unwary Employer
By:  Tim Williams

In 1964, Title VII was on the cusp of passing the House of Representatives.  In what is dubbed “Ladies Day,” Representative Howard Smith moved to add “sex” to Title VII.  Many viewed this addition as a last minute attempt to torpedo the bill.  It didn’t work.  As noted by Justice William Rehnquist, due to the last minute addition, “we are left with little legislative history to guide us in interpreting the Act’s prohibition against discrimination based on ‘sex.’”

Fast forward 50 years later, and a debate rages about whether Title VII extends protections to transgender individuals.  In Price Waterhouse v. Hopkins, the U.S. Supreme Court interpreted Title VII to protect individuals from discrimination based on their failure to conform to stereotypical gender norms as they relate to a particular sex.  Some courts have used this language to support a holding extending Title VII protections to transgender individuals, while others have determined that expansion of Title VII to include transgender individuals must come through the legislative process.  See, e.g., Schroer v. Billington, 577 F.Supp.2d 293 (D.D.C. 2008); Etsitty v. Utah Transit Auth., 502 F.3d 1215 (10th Cir. 2007).

Whether through judicial interpretation of the term “sex” as used in Title VII, or a legislative amendment that adds transgender individuals as a projected class, it appears that the current trajectory is toward inclusion.  If transgender individuals are included under Title VII, legal issues for employers are on the horizon. 

One of the issues brought to the forefront by recent passages of “bathroom bills” is restroom usage.  In Kastl v. Maricopa County Community College, the employer required the transgender individual to use the restroom that corresponded with her sex at birth until proof of a gender reassignment surgery.  The employee sued on the grounds that she was discriminated against under Title VII.  Ultimately, the court of appeals determined the employee’s claims were doomed under the McDonnell Douglas test because the employer proffered evidence that it banned restroom use based on safety concerns.  On the surface, this 2009 opinion seems to indicate that safety concerns may be a valid reason for the adoption of a restroom policy which requires employees to use the restroom corresponding with their sex at birth until reassignment surgery. 

Another case has addressed the rights of non-transgender employees who may feel uncomfortable sharing a restroom with a transgender employee.  In Cruzan v. Special School District, a female teacher brought suit against a school district for allowing a transgender co-worker to use the women’s facility.  The Eighth Circuit found that the decision to allow a transgender individual to use the restroom which corresponded to their physical presentation did not rise to the level of an actionable adverse employment action.  To do so only amounts to an inconvenience to the non-transgender employee, which is not actionable under Title VII.

The question remains: how does an employer develop appropriate policies to address these concerns?  Employers should contact attorneys for advice developing policies.  Until further guidance from the U.S. Supreme Court regarding interpretation of Title VII, the safest approach would be for employers to adopt policies based on non-discriminatory reasons in consultation with their attorney. 

Other issues likely will arise in the near future, including dress codes, overnight travels, and bona fide occupational qualification exemptions.  Employers will be well-served to develop policies in advance of issues arising, and consult with their attorney regarding recent developments applicable to existing policies. 

Despite several unanswered questions regarding the state of the law, one thing is certain: inclusion of transgender individuals under Title VII will dictate that employers regularly assess their employment policies.     

Tim Williams is an attorney at Sprouse Shrader Smith PLLC and a director of the Texas Young Lawyers Association.  Tim can be contacted at tim.williams@sprouselaw.com.