By Staff Report
Feb. 18, 2016
Title VII of the Civil Rights Act of 1964, the federal law prohibiting discrimination by private employers, does not expressly prohibit employment discrimination based on gender identity or expression. The U.S. Equal Employment Opportunity Commission and many federal courts, however, have held Title VII prohibits discrimination against transgender individuals. An increasing number of state laws provide similar protection.
Currently, 19 states, the District of Columbia, and Puerto Rico have laws expressly prohibiting discrimination based on gender identity or expression. Employers therefore cannot afford to ignore the rights of transgender employees.
As acceptance grows, local governments have added gender identity to their anti-discrimination ordinances. For example, 11 counties and 23 cities in Florida, which cover 56 percent of Florida residents, have similar human rights ordinances. Additionally, in December 2015, New York City released new guidelines clarifying gender identity and expression protections under its Human Rights Law and setting forth hefty fines for violations.
By revising existing policies and engaging in training, employers can foster a work environment where transgender employees are treated with respect and that reduces the likelihood of complaints by these employees. With these goals in mind, employers should consider the following steps:
Policies and training: Revise handbooks, equal opportunity, anti-harassment, open-door and similar policies to include “gender identity and expression.”
Create gender-neutral dress codes so an employee undergoing a gender transition may dress consistently with their gender identity while complying with the same standards applicable to other employees.
Train managers and employees on company policies and its complaint procedure, which should provide employees several different avenues for raising complaints and list the potential consequences of noncompliance.
Transition plan: As soon as possible after an employee announces their intent to transition, a manager and/or human resources professional should be designated as the person who will manage the transition. The employee and the designated person should then create a transition plan addressing whether the employee will take time off for medical procedures, and if so, how much; the date the employee will first transition at work; whether the employee plans a name change, and if so, when; the pronoun the employee prefers; and how co-workers should be informed about the transition and when.
Next, the employer should educate its managers regarding gender transition, discuss the transition plan and address any questions and concerns. Management should be cautioned regarding confidentiality until the transition has been announced and discuss the plan for co-worker education.
After the discussions have occurred, but before the transition date, the employer should meet with the transitioning employee, the employee’s direct supervisor(s), and the person designated to manage the transition (if someone different from the direct supervisor) to discuss the final transition plan.
Employees’ questions and concerns: After the employee’s transition is announced, the employer should educate co-workers on how to refer to the transitioning employee and employee privacy issues.
Restroom and locker room access: After an employee begins presenting full time in the gender to which they are transitioning, the employee should be permitted to use the restroom corresponding to that gender. A transgender employee does not need to have reassignment surgery or present medical documentation to use the restroom associated with their gender identity. If a co-worker is uncomfortable sharing a restroom with a transitioning employee, the co-worker — not the transgender employee — may choose other options (unisex restroom, if available; restrooms on other floors).
Name and pronoun changes: An employee has the right, without a name change, surgery or medical documentation, to be addressed by the name and pronoun that corresponds to their gender identity. The intentional or persistent refusal to respect an employee’s gender identity may constitute harassment. Management must use appropriate names and pronouns and swiftly address any employee failing to do so.
Record changes: Upon request, an employer should change an employee’s official record — as well as email address, the company telephone directory and any name plate — to reflect a change in name or gender. Payroll records might require a legal name change before the employer can alter the records.
Employers might be hesitant to proactively institute new policies and practices regarding transgender employees. But, as the law moves toward greater protection for transgender employees, employers run grave risk by not acting aggressively in this area.
Denise Visconti is office managing shareholder of Littler’s San Diego office, Theresa Waugh and Kimberly Doud are of counsel in Littler’s Orlando office. Comment below or email email@example.com. Follow Workforce on Twitter at @workforcenews.
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