Over this past year, there has been an increasing amount of attention on transgender persons both in the media and in the law. Garnering particular attention, North Carolina passed Senate Bill 2 which prohibits students and other persons at schools and public agencies from using a bathroom or changing facility other than the one designated for their biological sex. This bill caused a backlash by advocacy groups, large companies and the Department of Justice. In fact, shortly after the passing of this bill both the ACLU and the federal government filed lawsuits challenging the measure, claiming, in part, that it violates Title VII of the Civil Rights Act, which prohibits discrimination in employment based on sex. While many hope this wave of attention on transgender issues will increase legal protection for transgender persons, that protection is already in place in many states across the country.
Many states and municipalities, including California, Nevada, Colorado and the city of Phoenix, Arizona already extend workplace protection to persons based on their gender identity and/or sexual orientation. Gender identity refers to a person’s internal, deeply held identification as male or female, or in-between. This would include persons who are transgender, which is an umbrella term used to describe a person whose gender identity is different from their sex assigned at birth. Transgendered persons can be at various stages of a transition process, including “coming out” by telling family, friends and coworkers of their gender identity, using different names or pronouns, dressing differently, changing name or sex designation on legal documents, or accessing medical treatment, such as hormones or surgery. Not all transgender people want or are able to “fully transition.” This does not change their identity as transgender.
In locations where gender identity is a protected class, employers are increasingly faced with questions on how to navigate through the various stages of an employee’s transition, including how to refer to a transgender employee, which bathroom facilities to allow them to use and how to deal with other employees’ reactions to a transgender employee. Many of these questions are fact specific and vary based on the employee and the employer. There are, however, a few things an employer should keep in mind:
Keep it need to know. Ask yourself, do you really need to know an employee’s sex and gender identity? There may be instances where an employer does need to know, for example, there may be medication involved that could have an effect on safety or testing results. Or there may be an issue regarding which bathroom, changing room or sleep facility the employee is going to occupy. Other times, the employer may not need to know and it may be best not to inquire. Inquiring about an employee’s gender identity, when there is no legitimate business reason for doing so, may be viewed as harassment.
Keep it confidential. Never “out” a transgender employee to other people without the express permission of the employee. Whatever is shared with the employer should remain confidential.
Use appropriate names and pronouns. Consider referring to the employee however they refer to themselves. Call them by the name they call themselves and the pronoun they use. If you are unsure, politely ask which pronoun the employee prefers. In addition to more common pronouns such as she or he, zie, sie, ey, tey, and e have been identified as gender-neutral pronouns that some employees may wish to use.
Make shared space private. Whenever possible consider providing single-occupancy, gender-neutral facilities for use by employees who want more privacy, regardless of the reason. This may include curtaining off areas or changing existing facilities to gender-neutral facilities. If you only have multi-occupancy restrooms or changing facilities, consider making them as private as possible. Both the Equal Employment Opportunity Commission and California’s Fair Department of Employment and Housing take the position that employees have the right to use a restroom that corresponds to the employee’s gender identity, regardless of the employee’s assigned sex at birth.
Provide everyone with a resource. Consider designating a person who handles human resources issues at the company to be available to discuss concerns or complaints with employees. Immediately investigate any complaints of harassment, bullying or other inappropriate behavior. If a complaint is substantiated, take swift action. Remind employees of the company’s policy against retaliation.
Treat it like the interactive process. Think about who the appropriate person in human resources is to engage in a dialog with the transgender employee. Consider asking what the employee would like to be called, which bathroom they would prefer to use, if and how they would like the message communicated to others and if the company can do anything to ensure their work environment is as comfortable as possible.
Remind employees of anti-harassment policies. Whether it is the transgender employee or other employees, demand respect from everyone. Ensure there is no harassment by or against the any employees.
Be sensitive to other employees. Assuming you have permission of the transgender employee, consider discussing the situation with other employees. Take this opportunity to remind employees of the company’s policies against harassment and discrimination. Explore options to accommodate other employees’ privacy and moral concerns. This may include changing employees’ work locations to provide access to a different employee restroom or changing sleeping facilities or sleeping arrangements.
With the increased attention and the potential expanse of federal protection to transgendered persons, employers should consider being prepared to respond to questions, concerns and requests regarding many of these transgender issues.
