Six Tips for Avoiding Transgender Discrimination in the Workplace


This post has been updated with contributing information from Denise Norris, Founding Director, Institute for Transgender Economic Advancement.

Transgender and other gender non-conforming employees present special concerns for employers when developing and applying personnel policies and procedures, from restroom access issues to preventing discrimination and harassment. Employers who do not address such issues run a real risk of violating a number of state laws explicitly protecting lesbian, gay, bisexual and transgender (LGBT) workers from employment discrimination. Courts are increasingly receptive to the Equal Employment Opportunity Commission's (EEOC) position that claims of discrimination based on gender identity and/or gender expression are actionable under Title VII's sex discrimination prohibition.

The following tips can help employers prevent unintentional discrimination against gender-diverse employees in the workplace:

  1. Implement strong policies against discrimination and harassment that include "gender identity" and "gender expression" — not transgender — as protected classes;
  2. Address transgender and gender non-conforming employees by the name, gender and pronoun with which the employee identifies and make sure all managers, supervisors and coworkers do the same, particularly if the employee realigned their gender after joining the company. In the latter case, change the employee's work records, including identification cards, email accounts and office directories, to reflect their identification;
  3. Allow employees who have permanently realigned their gender access to corresponding gender-specific accommodations, including restrooms and locker rooms. When possible also offer gender non-specific, single-stall or single-occupant accommodations for all employees to use and provide adequate signage to identify that the accommodation is accessible by all genders;
  4. Implement a gender non-specific dress code and apply it consistently; where a dress code is not gender non-specific, ensure it is reasonable and can be justified by workplace requirements. Keep in mind that employees have the right to dress in conformance with their gender identity and free of sexual and gender stereotyping;
  5. Ensure the privacy of employees who have realigned their gender before joining the company is adequately protected, and treat those who transition thereafter with sensitivity and confidentiality;and
  6. Incorporate transgender and gender non-conforming terms and issues into employee training so other employees are able to relate to gender-diverse coworkers.

Protecting LGBT employees from discrimination and harassment is important. The laws of 18 states and the District of Columbia currently protect individuals from workplace discrimination and harassment on the basis of their sexual orientation and/or gender identity/gender expression. At the federal level, an Executive Order is set to shield up to 16 million LGBT employees working on federal contracts, while Title VII of the Civil Rights Act offers an increasingly viable claim against those who harass or discriminate against others in the workplace based on their sexual orientation or expression. Furthermore, as the American public's support of LGBT equality grows — 63% of 1,200 registered voters in a recent national survey favor a federal law that protects LGBT people from employment discrimination — allowing such discrimination and harassment can damage a company's reputation.

Policies that prohibit discrimination based on sexual orientation, gender identity and/or gender expression not only limit liability, but keep a company competitive and help it retain quality talent by showing employees it values workplace equality. These policies enable employees to be authentic in the workplace ultimately increasing employee performance and productivity. Companies can address these issues in their anti-discrimination policies and compliance training with Thomson Reuters' online Sensitivity Training or Preventing Discrimination and Harassment course. Online compliance training is an easy and effective way to ensure employees understand how to recognize, avoid and respond to improper conduct in the workplace.

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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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