Blog Post: Transgender Status And Sexual Orientation Added To The Colorado Anti-Discrimination Act

That means that covered employers may not make employment decisions based upon an employee’s sexual orientation or transgender status (in addition to membership in other, previously listed protected classes).   The amendment does not mean that an employee who is gay, a lesbian, bisexual or transgender is immune from discipline or termination or enjoys special status.  Rather, that they may not be hired, fired, disciplined (or disciplined more harshly than other, heterosexual employees), etc. based upon their orientation or status.  Sexual orientation and transgender status may not play a role in these decisions.

In my experience, whenever transgender status comes up, two questions leap to the forefront: What about bathrooms? What about a dress code?    

Although we have not yet seen any cases interpreting this amendment, and will probably not see any for quite some time, the Colorado Department of Regulatory Agencies (DORA) published a guide that may provide some insight into the way that a Court may interpret the new provisions.  That brochure is found on the Internet at http://www.dora.state.co.us/Civil-Rights/Sexual_Orientation/SexualOrientationEmploymentFAQBrochure.pdf

Based upon State and Federal law, and this brochure interpreting the new amendments, we speculate that employees who are transgendered may be held to a dress code.  To the extent that a dress code is gendered, they may be held to the dress code that applies to their transgendered gender (the gender with which they identify) not their birth gender.  Similarly, employers may have gendered restrooms, and the employee may use the restroom associated with the restroom assigned to the gender with which they identify, not their birth gender. 

In many ways, this law is very simple. In others, it is complicated.  Transgender status challenges many of us, because it is not something with which we are personally familiar.  In situations like this, compassion, education and sound legal advice are important tools to avoiding unintended liability.

This article is intended as a general discussion and information on the topic covered, and is not to be construed as rendering legal advice. If legal advice is needed, you should consult an attorney. This article may not be reprinted or reproduced in any manner without prior written permission of the author.

Laura J. Hazen is a Director at Ireland Stapleton Pryor & Pascoe, P.C. In her employment practice, Hazen provides day-to-day advice and coaching to public and private companies on various employment matters. She also has an active litigation practice where she concentrates on representing business in all aspects of complex business and employment disputes. You can contact her by email at lhazen@irelandstapleton.com or by phone at 303-623-2700.