Suggestions For Employers With Transgender Employees

The first part of this article is a very interesting discussion on Transgender employment discrimination and how it has been handled by the United States Courts under Title VII.

The remainder of the article focuses on what employers should do to prepare themselves for Transgender and gender non conforming employees.

Commentary: What About Roberta?

by Warren Buliox

Job Cites

December 18, 2009

.....Whether or not you are in a jurisdiction which expressly prohibits discrimination on the basis of gender identification, we recommend that you treat transgender employees as if they are in fact members of a protected class. That is, you take steps to ensure that their experience is fair and no different than that of similarly situated employees not in their protected class. Doing so not only lends itself to a healthy work environment but may also help to shield your company against liability, should a court in your jurisdiction decide (perhaps as a result of a case against you) that transgender employees are protected under anti-discrimination laws.

We suggest you consider the following should “Bob” ever come into your office seeking guidance and support during his “transition” period and beyond.

Anti-Discrimination Policies: Discrimination or harassment on the basis of one’s gender identity should be prohibited. Consider revising your anti-discrimination policies to include an express reference to gender identity. This should help to ensure that employees are sufficiently aware that discrimination and harassment against transgender employees will not be tolerated.

Training: Consider training management on what the law is in your jurisdiction with respect to transgender employees. Management, in turn, should work to ensure that employees are fully aware that discrimination or harassment against others on the basis of their gender identification is strictly prohibited. If the transgender employee is comfortable, management may also want to consider holding a meeting with employees to announce the employee’s intentions and the company’s expectations and to discuss any issues others may have (i.e. restroom use).

Dress Codes: Employers should allow a transgender employee to dress in a manner appropriate (pursuant to the dress code policy) for that employee’s gender identity. Gender neutral dress code policies are ideal, though not required.

Restroom Accessibility: Employees should be allowed to use restrooms that correlate with the employee’s gender identity. Co-workers who are uncomfortable with this should be asked to use another restroom, if another facility is reasonably accessible. If there are privacy concerns, employers should consider (if reasonably feasible) installing larger privacy dividers between urinals and using larger stall doors which go from the floor to the ceiling. Another option may be to install lockable single occupant stalls. Under no circumstances should a transgender employee be required to use the restroom that corresponds to his/her sex assigned at birth.

Some commentators have suggested that that individuals who identify themselves as members of the opposite sex may be perceived as having mental disability which could bring them under the protections of the Americans with Disabilities Act (“ADA”). Following this logic, transgender employees would be entitled to “reasonable accommodations,” which may include separate restroom facilities, changes to any dress code policies and employee sensitivity training.

Names and Pronouns: Transgender employees should be referred to by the name and pronoun that correlates to their gender identity. Persistently referring to the employee with names and pronouns that do not correspond to his/her gender identity can lend itself to harassment and hostile work environment claims. Employers should consider updating personnel records to reflect the employee’s new name and pronoun.

Privacy Issues: Medical and mental health issues should at all times be kept confidential. Accordingly, information on sex change operations or counseling should not be disclosed.

Warren Buliox is an attorney at Gonzalez Saggio & Harlan LLP, practicing employment law in the Milwaukee office. He can be reached by telephone at 414-277-8500 or via email at warren_buliox@gshllp.com.

ORIGINAL ARTICLE