Last month in a nationally televised interview, U.S. Olympic icon Bruce Jenner revealed to the world that he is a transgender woman. While the coming out process for the rest of the nearly 700,000 transgender Americans may not garner the attention that Jenner’s announcement did, it is very likely that these individuals must come out to their employers at some point before, during or after their transition. However, if these employees do choose to come out, they are not protected from workplace discrimination or harassment based on their gender identity or expression by any federal law, and only 20 states offer such protections to transgender employees. Locally, the New Jersey Law Against Discrimination, the Delaware Discrimination in Employment Act and the Philadelphia Fair Practices Ordinance do prohibit discrimination based on an employee’s gender identity or expression.
Despite the lack of specific legal protections for many workers based on gender identity or expression, several federal courts and the federal Equal Employment Opportunity Commission (EEOC) have interpreted the prohibition against sex discrimination found in Title VII, to include discrimination against transgender workers or based on gender identity or expression. Therefore, all employers who are covered under Title VII, or a similar state anti-discrimination law, should take proactive steps to avoid any form of potential workplace discrimination or harassment based on gender identity or expression.
Include “Gender Identity” in Non-Discrimination and Anti-Harassment Policy
As with the prevention of any type of workplace discrimination or harassment, it is important for employers to establish and enforce policies and procedures that prohibit discrimination or harassment based on an individual’s gender identity or expression. Therefore, employers may consider including “gender identity” in the list of protected categories in their non-discrimination and anti-harassment policies. By establishing such a policy, employers send a strong message to their transgender workers and applicants that they intend to create an open and inclusive environment where transgender employees should feel comfortable and will be accepted.
Educate Your Workforce about Gender Identity and Expression
One of the main reasons for discrimination of any kind is a person’s lack of knowledge about people who are different from them in some way. This is especially true for transgender individuals, because many people do not understand the concept of gender identity and often confuse it with sexual orientation, which is the basis of one’s sexual desires and attractions. The term “gender” refers to behavioral, cultural or psychological traits that are commonly associated with one sex. Gender identity refers to the gender to which a person identifies, regardless of the sex assigned to that person at birth. Gender expression is the way that an individual communicates his or her gender identity to the world through a set of mannerisms or traits. A transgender person is an individual who was assigned a particular gender at birth, but who identifies with and may have taken proactive steps to live as the other gender. In order to avoid confusion among their employers about what it means to be transgender, employers should include issues related to gender identity and expression in their workplace diversity and equal employment opportunity training.
Establish Guidelines for the Transitioning Process
Establishing guidelines as to how the transition process will be handled can provide helpful structure and predictability for both the transitioning employees and their managers. Some of these policies and procedures may already be established, such as the procedures for taking medical leave, while others may be more unique, such as how a manager will assist the employee with explaining the transition to the employee’s coworkers.
Avoid Unnecessary Gender Designations and Help Facilitate Name Changes and Other Administrative Tasks
Just as it is unnecessary, not to mention illegal, to ask for an applicant’s date of birth on an employment application, it may also be unnecessary for an employer to ask about an applicant’s or an employee’s gender on an application or in some administrative paperwork. For transgender persons, the seemingly simple options of identifying themselves as either “male” or “female” could pose a challenge or force them to make unwanted disclosures to their current or prospective employers. Therefore, unless collecting data on employees’ sex or gender is necessary, employers may want to avoid asking for this information from applicants and employees.
Additionally, employers and managers should ask the transitioning employee what proper name and pronouns the employee desires to be called in the workplace, and use that name and pronoun consistently and ensure that the employee’s colleagues do the same. Employers should also assist employees who wish to change their names formally by making sure that all the necessary individuals and departments are informed of the name change so that the paperwork process can go smoothly.
Provide Access to Restrooms and Locker Rooms According to the Employee’s Preference
The biggest logistical issue for many employers of transgender employees is determining what bathroom or locker room the employee will use. While many transgender persons may prefer to use the bathroom and locker room associated with the gender with which they identify, regardless of whether they have undergone gender reassignment surgery, some may feel uncomfortable doing so. Having a single-occupancy, gender neutral bathroom may easily resolve this issue; however, such facilities are not available in every workplace. A best practice for employers, which is also in compliance with applicable non-discrimination laws, would be to permit transgender employees to use the facility of their choosing.
Employers should review their current policies and procedures to ensure that their transgender workers feel comfortable and welcome, and also to ensure that they are not unintentionally violating any laws or infringing on the rights of transgender workers in any way. If you have any questions regarding your company’s policies and procedures as they related to transgender workers, contact legal counsel.