Transgender People Face a Widespread Pattern of Discrimination and Harassment inEmployment
Discrimination and harassment based on gender identity is a reality for transgender and gendernon-conforming workers. According to
The State of Transgender California,
two thirds of transgender Californians, or 67% report some form of workplace harassment ordiscrimination directly related to their gender identity.
This harassment and discriminationranged from verbal harassment to unfair scrutiny or discipline to termination of employment.Almost half of the surveyed population reports that they experienced some loss of employmenteither directly as a result of their gender identity or as a possible result of their gender identity.There was no difference between experiencing discrimination and type of employer. Thewidespread pattern of discrimination and harassment face by transgender workers exists inprivate companies, in the non-profit sector, and in government.
Discrimination Against Transgender Employees Is Under-Reported
Despite widespread employment discrimination,
only 15% of transgender Californians whoreported some form of discrimination or harassment went on to file a complaint
. Californiahas explicit protections against workplace discrimination based on gender identity, and stillreporting rates are shockingly low. One can assume that reporting rates in the many stateswithout such protections are far lower. Without explicit federal protections, state and localemployees are not only vulnerable to discrimination, but are also less likely to speak out about itor make complaints out of fear of retaliation by the employer, and because they are not assuredlegal recourse for such discrimination or retaliation.
ENDA Is Necessary to Clarify Employers’ Obligations Under Federal Law
The explicit protections in federal statute for gender identity and sexual orientation created byENDA are crucial, despite recent rulings from courts and the EEOC that transgender people, aswell as lesbian, gay, and bisexual people, are protected by the prohibition of sex discriminationin Title VII of the Civil Rights Act.
EEOC Appeal No. 0120120821 (2012) (finding that discrimination based on gender identity,change of sex, and/or transgender status is cognizable under Title VII;
Schroer v. Billington
, 577 F.Supp.2d 293(2008) (D.C. 2008) (holding that transgender plaintiff was protected by Title VII both due to sex stereotyping andbecause discrimination against a person who had changed gender was gender discrimination just as it was religiousdiscrimination to discriminate against a person because they changed their religion);
Lopez v. River Oaks Imaging & Diagnostic Group, Inc.
, 542 F. Supp. 2d 653, 655-656 (S.D. Tex. 2008) (holding that Title VII is violated when anemployer discriminates against any employee, transsexual or not, because of their gender expression);
Prowel v.Wise Bus. Forms, Inc.,
579 F.3d 285, 292 (3d Cir. 2009) (denying summary judgment on a sex discrimination claim,expla
ining that evidence of sexual orientation harassment “does not vitiate the possibility that [the plaintiff] was alsoharassed for his failure to conform to gender stereotypes”);
Smith v. City of Salem
, 378 F.3d 566 (6th Cir. 2004)(holding that a transgender woman plaintiff fired for her job for expressing feminine gender characteristics at work could recover under Title VII).