Q. We have a male employee in our accounting department. He recently told us that he plans to start presenting himself as female and is thinking of undergoing surgery to transform to a female. We think we will have employees who are really uncomfortable with this situation, so we are wondering if we can terminate our accounting employee or if this might get us into trouble?
A. You should proceed carefully or you might face a discrimination claim from your transgender employee. To date, federal employment discrimination law has not expressly prohibited sexual orientation or transgender status discrimination. Increasingly, however, some states have such laws. In addition, the EEOC takes the position that sexual orientation or transgender discrimination may violate the traditional prohibition under federal law on sex discrimination.
The EEOC views the law against sex discrimination as prohibiting discrimination based on an individual not meeting gender-based stereotypes or expectations. Based on this position, it has brought several lawsuits against employers for firing transgender employees that were transitioning from one sex to another. Religious institutions have some discrimination law exemptions that other employers do not have, but you don’t mention being a religious organization. In the end, you should consult with legal counsel before acting and likely face risks that you will need to consider before acting.
Megan L. Anderson is an attorney with Gray Plant Mooty’s Employment Law Practice Group in Minneapolis. Concentrating her practice in employment law counseling and litigation, she regularly advises employers and provides training on a variety of employment law issues. Contact her at firstname.lastname@example.org or (612) 632-3004.