• 23
  • December
    2011

Every business owner knows that there is a minefield of potential risks to the health and wellbeing of their commercial pursuit. Unanticipated competition, regulatory changes, and litigation can all put profits at risk. In many situations, a business owner is well equipped to handle and mitigate these risks, but others may be so novel that the proper course of action may be unclear.

In the first installment of this post, we introduced a recent ruling by the Eleventh Circuit Court of Appeals that found that employment discrimination against transgendered employees is actionable in court. While the specifics facts in cases involving transgendered employees vary, it is likely that many employers are not certain how to appropriately respond to this type of situation.

In this case, an editor at the Georgia General Assembly's Office of Legislative Counsel was in the process of transitioning from a biological male to a female. At one point the editor showed up at a work party dressed and presenting generally as a woman. The Director of the office sent the editor home, describing her appearance as inappropriate and unsettling.

Later, the editor's direct supervisor, who was aware of the editor's intention to transition to a woman, informed the director that the editor was proceeding with the transition and would be coming to work as a woman and change her legal name. The director then terminated the employment of the editor was disruptive and would likely make other workers uncomfortable.

A Federal Appeals Court found that terminating an employee based on a gender transition amounted to sex discrimination. They reasoned that all persons, regardless of sex are protected from discrimination based traditional gender roles.

It is possible that the director's decision to terminate this employee was the result of a legitimate fear that the transition could make other workers uncomfortable. This appears to be a situation where despite an absence of malicious intent the court still determined that the employer was in the wrong.

In order to mitigate the risk of an employment action in cases where the correct course of action is not always intuitive, it is important to seek guidance from an experienced employment law attorney.

Source: The Tennessean, "Workplace Law: Judgment entered in sex discrimination case," Joshua Sudbury, Dec. 20, 2011