- Make sure the company’s anti-harassment and discrimination policies are up to date
- Train all managers, supervisors and employees on all aspects of harassment and discrimination with special attention to transgender and gender identity issues.
- Strictly enforce all policies including discipline for violation thereof.
FEDERAL CONTRACTORS AND SUBCONTRACTORS BEWARE: the DOL could be a-knocking
The federal Department of Labor through its Office of Federal Contract Compliance Programs, recently stated that it will hold all 200,000 government contractors and subcontractors, responsible for discrimination based upon gender identity and transgender status. This follows an announcement Secretary Perez made in June that the department is updating enforcement protocols and anti-discrimination guidance to clarify that we provide the full protection of the federal non-discrimination laws that we enforce to transgender individuals. And it follows President Obama’s signing of Executive Order 13672 adding sexual orientation and gender identity as independent categories protected by Executive Order 11246, which OFCCP enforces. So what does this mean? It means the OFCCP is going to pay close attention to complaints of alleged unequal/discriminatory treatment of transgendered individuals and those that identify with a particular gender. Patricia A. Shiu, the Director of the OFCCP stated that “being entrusted with taxpayer dollars is a privilege, and with that privilege comes a promise to open doors to all of America’s workers. I believe that success for OFCCP and for federal contractors isn’t simply about compliance. It’s about creating a workplace culture that actively embraces diversity. Inclusiveness isn’t just good for workers; it’s smart for business. When employees can work without fear, when they can comfortably bring their whole selves to the job, companies benefit from the diverse perspectives and enthusiasm those workers bring to the job.” Under current Title VII case law principles, discrimination based on gender identity or transgender status, as defined below, is discrimination based on sex. In its decision in Macy v. Holder, 2012 WL 1435995, the EEOC unanimously concluded that discrimination because a person is transgender is sex discrimination in violation of Title VII. The complainant in Macy, a transgender woman working as a police detective, alleged that she was denied a job with the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) when she informed the ATF that she was in the process of transitioning from male to female. The EEOC concluded that discrimination on these grounds was discrimination “on the basis of sex,” citing both the text of Title VII and multiple federal court decisions interpreting the statute. The EEOC identified sex stereotyping as one way in which a transgender employee, job applicant, or former employee could prove sex discrimination. Recommendations: