Transitioning to Compliancy: Inside a Transgender Discrimination Audit

Monica Palacio, DCOHR Director

What do LGBTQ rights activists, the EEOC, President Obama, and an increasing number of circuit courts have in common? You guessed it! All have been active in granting broader employment discrimination rights to the transgender community, and the private sector may not be far behind. With gender identity discrimination laws on the books in nineteen states and numerous municipalities, transgender workplace discrimination– from gender transition support for employees to special protections regarding restrooms to ensuring workplace dress codes are gender neutral- is an issue that should be on your clients’ radar in 2016.

Bloomberg BNA caught up with Mónica Palacio, former Commissioner of the D.C. Commission on Human Rights and current Director of the D.C. Office of Human Rights (“OHR”), to ask her about Qualified and Transgender, a November 2015 report on resume testing for employment discrimination based on gender identity. Palacio shared insight on her agency’s investigation and how employers around the country can comply with basic transgender discrimination protections.

Identity, Expression, and Cisgender: Learn the Lingo

Bloomberg BNA: Gender identity, the gender one identifies with, and gender expression, the way someone expresses his or her gender, are examples of terms commonly found in discrimination laws. The OHR report uses terms like cisgender and non-cisgender. Can you explain these terms for BBNA Labor and Employment Blog readers?

Palacio: Cisgender is a term commonly used to refer to people whose sex assigned at birth is the same as the gender the person identifies as. For example, someone assigned to be female at birth that still identifies as female is considered cisgender. Non-cisgender people are those who are transgender, gender non-conforming or another type of identity where the birth sex and current gender identity are different.

Gender Identity Discrimination Audit: What it Looks Like

Bloomberg BNA: The OHR decided to test employers for gender identity discrimination with a resume drop, sending employers two transgender or gender non-conforming resumes alongside two resumes lacking gender identity indicators. Employers were rated based upon which applicants were offered interviews. Why did your agency choose this methodology to test for gender identity discrimination?

Palacio: For several years OHR has worked with the transgender and gender non-conforming community to raise awareness about the district’s non-discrimination laws and to promote acceptance and understanding. The egregious stories alleging discrimination in employment are what prompted OHR to conduct this testing, because we wanted to better understand the types and extent of discrimination against the transgender community. While OHR and other enforcement agencies regularly test for traits such as race, national origin and disability, the lack of government-run testing projects focused on gender identity created a real opportunity to help other jurisdictions better understand this type of discrimination as well.

Bloomberg BNA: The report focuses on the university, grocery, hotel, retail, restaurant, and administrative industries with the result of the restaurant industry experiencing the most discrimination against transgender applicants. Why did the report focus on these employers and why was the restaurant industry called out?

Palacio: When designing the tests, we held many discussions with transgender advocates on the issue of employment, and asked about sectors their constituents regularly applied to. This is what led us to the sectors we decided to test, and we focused primarily on entry-level positions because of these conversations with advocates as well. We certainly had no intention of “calling out” the restaurant industry, but we decided before testing began that we would report out the perceived discrimination rate by sector, and we were not going to change that plan because of the findings.

Gender Identity Discrimination: Coming to a Jurisdiction near You

Bloomberg BNA: With campaigns like Safe Bathrooms D.C., the district has some of the strongest transgender employment protections in the country. The report states that this was the first known test of its kind. Have you had any response or signals that similar tests may be conducted in other jurisdictions?

Palacio: Qualified and Transgender has received an extremely positive response from both enforcement agencies and LGBTQ organizations, and we hope it inspires other enforcement agencies to expand on or conduct similar testing. Our study was limited to discrimination that occurs during the application phase – when employers review cover letters and resumes – and did not look at discrimination that occurs during the interview process or when a transgender employee is already in the workplace. We hope other enforcement agencies will explore these areas with additional testing, and share the results so all can benefit.

Audits, Testing, and Enforcement: Think like a Regulator

Palacio: Enforcement agencies and non-profit organizations across the country regularly use testing as a proactive tool for understanding discrimination, and OHR has conducted testing in many areas in the past. The intent of this testing was to get a better understanding of employment discrimination against transgender and gender non-conforming people during the application phase. Additionally, our testing and subsequent investigations do not lead to penalties for employers, because there is no actual complainant to receive damages. Therefore this is an excellent opportunity for employers to review their hiring practices and ensure equal treatment of applicants without facing the penalties that can often be assessed when an applicant or employee files a complaint and discrimination is found.

While the perceived rate of discrimination uncovered in the report is devastatingly high, the actual discrimination rate against transgender and gender non-conforming people nationwide is likely higher. The tester applicants we used were perceived as white and young because we needed to control for race and age, and it is fair to assume transgender people of color and older transgender people experience higher rates of discrimination. We hope this report will lead to further discussions on how to address obstacles to employment for the transgender and gender non-conforming community, and that employers will see it as an opportunity to ensure their businesses are considering all applicants equally.

Takeaway: It comes down to Qualifications, Qualifications, Qualifications

Palacio: Statistical and anecdotal evidence tells us transgender and gender non-conforming people are experiencing employment discrimination at very high rates, and this testing project confirms that unfortunate truth. It's vital that government, the business community and advocates work together to end this chronic injustice. The bottom line is that employers should select the applicant that is most objectively qualified for the position without regard for gender identity or other protected traits.  

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