It’s Time To Train Your Managers To Be Compassionate To Gender Transition Issues

Companies surprised by an employee’s gender transition cannot lose sight of their obligations under federal employment law.  In Western Kentucky, a District Court ruled on Monday that it would allow Pax Bradford to proceed in his suit against Humana, Inc. on claims that it violated the Family Medical Leave Act, the Americans with Disabilities Act, and Title VII of the Civil Rights Act. Bradford is also suing Prosoft, LLC, an alleged joint-employer, under the FMLA, although the District Court dismissed his ADA and Title VII claims against it.

Bradford is transgender. He is anatomically female but identifies as male. Roughly four months after he was hired by Humana and Prosoft, Bradford’s doctor informed him that he needed a complete hysterectomy. Bradford disclosed his need for surgery, along with his transgender status, to Humana and Prosoft, which were previously unaware that Bradford is transgender. Humana and Prosoft denied Bradford medial leave and/or work accommodations, and terminated him.

One day after the Kentucky District Court issued its ruling, various church groups submitted briefs to the Sixth Circuit Court of Appeals, asking that it reopen a case in which the plaintiff claimed she was fired for her gender identity and transgender status in violation of Title VII. An amicus brief filed by the Unitarian Universalist Association argued that the dismissal of the suit enabled employers to discriminate based on religion. Another amicus brief by 76 clergy members, including Jews, Episcopalians, Baptists, and Methodists, among others, and 14 religious and civil-rights organizations noted that religious freedom does not include the right to discriminate against third parties or impose one’s faith on others. Lambda legal also filed an amicus brief in support of the plaintiff.

Although the outcome of Bradford’s case and the amici briefs remains to be seen, they demonstrate a clear take-away for employers. Companies should be prepared to handle an employee’s disclosure of his or her transgender status and related issues in a way that comports with federal law. Otherwise, they risk exposure. This is especially important as employees may not volunteer their transgender status when they are hired for personal reasons, or because it may not be widely culturally accepted in the community. Companies should protect themselves now by working closely with counsel to develop policies and conduct training sessions about the intersection of employment law and gender identity.

Leave a Reply