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Following Bostock, How Employers Can Lead the Way to Embrace Transgender Employees in the Workplace

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Following Bostock, How Employers Can Lead the Way to Embrace Transgender Employees in the Workplace Following Bostock, How Employers Can Lead the Way to Embrace Transgender Employees in the Workplace Nanci K. Carr, J.D.* 2020 was quite a year! Yes, society endured the pandemic,1 but that was not the only news. After a split in the circuits as well as inconsistency between states’ laws, the Supreme Court of the United States finally held that workplace discrimination against individuals who are transgender is unlawful. In addition, the United States elected openly transgender people to government offices and numerous celebrities shared their transitions. The EEOC has identified LGBTQ employees’ rights as an enforcement priority. These are signals to U.S. companies that they must take steps to not only comply with the law, but also develop policies and training to embrace transgender people in the workplace. I. BACKGROUND Thirty-year-old Sarah McBride tweeted that 2020 was a year that showed “an LGBTQ kid that our democracy is big enough for them, too.”2 Ms. McBride, after being the first openly transgender3 White House employee as an intern in President Obama’s administration,4 became the first transgender state senator to be elected after winning her Delaware election * Nanci K. Carr, is an Assistant Professor of Business Law and the Carande Family Faculty Fellow at California State University, Northridge (“CSUN”). J.D., cum laude, Southwestern Law School; B.S., Business Administration, Ball State University. Thanks to research assistant Joe Lozano, CSUN Class of 2020. 1 The world continues to battle SARS-CoV-2 virus that causes coronavirus disease 2019, nicknamed COVID-19. Coronavirus Disease 2019 (COVID-19) Situation Summary, CDC.GOV (Mar. 3, 2020), https://www.cdc.gov/coronavirus/2019-ncov/summary.html. 2 Sen. Sarah McBride @SarahhMcBride, TWITTER (Nov. 3, 2020, 6:52 PM), https://twitter.com/SarahEMcBride/status/1323805254081761282. 3 Glossary of Terms, HRC.ORG, https://www.hrc.org/resources/glossary-of-terms (last visited Mar. 16, 2021) (defining transgender as “[a]n umbrella term for people whose gender identity and/or expression is different from cultural expectations based on the sex they were assigned at birth.”). 4 Gwen Aviles, Transgender Candidates Make Election History, HARPERSBAZAAR.COM (Nov. 4, 2020, 11:02 AM EST), https://www.harpersbazaar.com/culture/politics/a34567467/election-2020-trans-winners. [4-12-2021] Denver Law Review Forum 2 race.5 Other members of the transgender community won their races as well, including Vermont’s Taylor Small, elected to the U.S. House of Representatives, Stephanie Byers, the first trans person of color to be elected to a state legislature in Kansas,6 and Mauree Turner, the first non- binary candidate elected to a state legislature in Oklahoma.7 These election wins came on the heels of the June 2020 decision in Bostock v. Clayton County where the Supreme Court finally affirmed that Title VII of the Civil Rights Act of 1964,8 which prohibits discrimination on the basis of sex, also includes protection for homosexual and transgender employees.9 In Bostock, three cases where employers fired employees for being gay or transgender were joined.10 This landmark decision clarified a split in the circuits as to whether homosexual and transgender people were protected by Title VII.11 Shortly following the 2020 election news, well-known actor Elliot Page, (best known for his roles in Juno and Umbrella Academy), announced that he is transgender.12 In his announcement, Page said, “My privilege has allowed me to have resources to get through and to be where I am today, and of course I want to use that privilege and platform to help in the ways I can.”13 Josie Lynne Paul, Chief Administrative Officer at Chicago House 5 Id. 6 Id. 7 Kelsie Smith, Mauree Turner is the First Nonbinary State Legislator and First Muslim Oklahoma Lawmaker CNN (Nov. 5, 2020 9:47 AM), https://www.cnn.com/2020/11/05/politics/first-nonbinary-and-muslim-oklahoma- lawmaker/index.html. 8 Civil Rights Act of 1964, PUB. L. 88-352, 78 STAT. 241 (codified as 42 U.S.C.. § 2000e). 9 Bostock v. Clayton Cty, Ga. v. Zarda v. R.G. & G.R. Harris Funeral Homes, Inc. v. EEOC, 140 S.Ct. 1733 (2020) (deciding three consolidated cases regarding employees who were fired due to their LGBTQ status). A Michigan funeral home paid $250,000 to the estate of Aimee Stephens, a transgender funeral director, and as a result, according to EEOC trial attorney Dale Price, “the law is now clear that discrimination against an employee because of his or her transgender status is sex discrimination.” Reuters, Funeral Home Settles Landmark Transgender Bias Case for $250,000, NBCNEWS.COM (Dec. 2, 2020, 7:55 AM PST), https://www.nbcnews.com/feature/nbc-out/funeral-home- settles-landmark-transgender-bias-case-250-000-n1249700. 10 Id. 11 Id. 12 Sara M Moniuszko, Elliot Page Covers Time Magazine, Talks Coming Out and Trans Equality: 'I’m fully who I am', USA TODAY (Mar. 16, 2021 8:10 AM), https://www.usatoday.com/story/entertainment/celebrities/2021/03/16/elliot-page-time- magazine-talks-coming-out-transgender-acting/4713873001/ . 13 Id. 3 Denver Law Review Forum [4-12-2021] who transformed the TransCare Life Program, expanding access to HIV prevention and serving over 300 clients,14 expressed she would have appreciated an easier time if transitions were more public but instead experienced a mix of reactions at work after transitioning, with some colleagues expressing kindness but others discomfort.15 According to the National Center for Transgender Equality, “more than one in four transgender people have lost a job due to bias, and more than three-fourths have experienced some form of workplace discrimination.”16 Seventy-seven percent of those participating in a survey by the National Center for Transgender Equality stated they had taken steps like delaying or hiding their gender transition to avoid workplace mistreatment.17 Not only are transitions challenging for the transgender employee, but also for co- workers who may not know how to embrace a colleague on a trans journey. Employers may not know how to guide their employees to not only comply with the law, but to create a positive and productive workplace. This Article explores some of the challenges employers and employees face as individuals transition within the workplace and offers guidance for policies and training that employers should adopt for their workplaces. II. DEVELOP POLICIES Discrimination against employees based on gender identity is prohibited in both hiring and employment practices; therefore, companies need to develop anti-discrimination and anti-harassment policies that include gender identity 14Jose Lynne Paul, CHICAGO HOUSE, https://www.chicagohouse.org/josie-lynne-paul (last visited Mar. 16, 2021). 15 Alexia Elejalde-Ruiz, How Companies Accommodate Transgender Employees – and Their Colleagues, CHICAGOTRIBUNE.COM (Jan. 9, 2016, 5:20 AM), https://www.chicagotribune.com/business/ct-transgender-workplace-0110-biz-20160109- story.html(noting that Ms. Paul said in hindsight that she should have started the workplace conversation earlier in her transition, which might have prevented some of the hurtful rumors). 16 Issues/Employment, NATIONAL CENTER FOR TRANSGENDER EQUALITY, https://transequality.org/issues /employment, (last visited Dec. 31, 2020). 17 THE REPORT OF THE 2016 U.S. TRANSGENDER SURVEY, NATIONAL CENTER FOR TRANSGENDER EQUALITY 13 (2015) available at https://transequality.org/sites/default/files/docs/usts/USTS-Full-Report-Dec17.pdf. See also, e.g., Elejalde-Ruiz supra note 4 (describing Chloe’s journey, a copyrighter at ad agency Leo Burnett, who said she had been terrified throughout her life of coming out, and that she “worried that transitioning could damage her career or distract from the reputation she’d built.”) [4-12-2021] Denver Law Review Forum 4 as well as gender expression.18 Such policies might have helped Jane Doe, a transgender cashier who formerly worked at the Dunkin’ Donuts in Bethlehem, Pennsylvania, who alleged that she was fired after complaining that managers at the store did not prevent harassment from customers and coworkers.19 Additionally, she alleged that she was terminated due to her gender identity.20 Dunkin Donut’s spokeswoman, Michelle King, noted that its locations are independently owned and operated, but that from a corporate standpoint, "We and our franchisees pride ourselves in our diverse workforces, and we strive to create inclusive work cultures. Our franchisees are required by their franchise agreement to comply with all applicable laws.”21 While that may be corporate policy, Doe successfully overcame Dunkin’ Donuts motion to dismiss based on her claim that her employer failed to make reasonable accommodations as required by the Americans with Disabilities Act (ADA).22 The ADA recommends to provide reasonable accommodations, “it may be necessary for the covered entity to initiate an informal, interactive process 18 Bostock v. Clayton Cty, Ga. v. Zarda v. R.G. & G.R. Harris Funeral Homes, Inc. v. EEOC, 140 S.Ct. 1733 (2020); Gonzalez, infra note 82. See Glossary of Terms, supra note 4 (defining gender identity as “[o]ne’s innermost concept of self as male, female, a blend of both or neither – how individuals perceive themselves and what they call themselves. One's gender identity can be the same or different from their sex assigned at birth” and gender expression as “[e]xternal appearance of one's gender identity, usually expressed through behavior, clothing, body characteristics or voice, and which may or may not conform to socially defined behaviors and characteristics typically associated with being either masculine or feminine”). 19Doe v Triangle Doughnuts, LLC, 472 F. Supp. 3d 115, 122 (E.D. Pa. July 16, 2020) (Triangle Doughnuts LLS operates Dunkin’ Donuts); see also Elliot C. McLaughlin, Transgender Ex-Cashier Sues Dunkin' Donuts, Saying Managers let Coworkers and Patrons Harass her, Then Fired her, CNN (Nov.
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