Transgender Workplace

When I did my presentation at the Wessels Sherman 15th Annual Labor and Employment Law Power Seminar on May 1, 2015 (Winds Of Changing Seasons – When Harry Became Sally), I had no idea that this topic would have such a major impact on business operations and that the impact would continue to grow into 2016. For any Employer to “stay ahead of the curve” regarding Transgender Issues, those Employers must start adopting more inclusive policies and procedures in their operations. To date, nineteen (19) States and the District of Columbia have adopted specific Laws prohibiting discrimination in Employment and/or Public Accommodations based on both Gender Identity and Sexual Orientation. The Federal Government, acting under the auspices of President Obama in the issuance of Executive Orders, are specifically requiring Federal Contractors and Subcontractors to prohibit any and all discrimination against Employees based on Gender Identity or Sexual Orientation. The Equal Employment Opportunity Commission has taken a very aggressive posture commencing a number of lawsuits against Employers, under the auspices of Title VII on the basis of Sex Discrimination, when an Employer has disciplined and/or fired a Transgender Employee. Congress is again considering specific legislation adding “Gender Identity and Sexual Orientation” as specific grounds of discrimination to Title VII.

Every Employer must begin to become proactive and start thinking of ways to create a work environment that provides safety to its Employee Complement and is free of discrimination when dealing with Gender Identity and Sexual Orientation. Simply stated, Employees who may be in the process of transition without informing their Employers or, in the alternative, when an Employee presents himself/herself in a newly Identified Gender without advance notice, it is important that Employers have established non-discrimination and accommodations for Transgender individuals.

Here are some suggestions for Employers going forward:

1. Draft Employment Policy Sections which specifically address Transgender Employees. Simply stated, Employees who are not transitioning may be unaware of what transitioning entails and what, in fact, constitutes discrimination. For example, it may be considered as harassment if a Transitioning or Transgender Employee is referred to by a wrong pronoun (Harry, who is transitioning to Sally, is consistently called “He” by other Employees).
2. Be aware that the provisions of the Family Medical and Leave Act do, in fact, cover Employees who are taking Medical Leave for transition-related purposes, either for themselves or a family member. As in every other case, do not ask a Transitioning Employee for a Medical Record to prove that the Employee is, in fact, transitioning. 
3. Outline any and all Medical Benefits that are available for Transitioning Employees and their spouses. Even after an individual has completed the transition process, that Employee’s marital and parental status does not change and that Employee’s “spouse and dependents” are still covered by insurance. 
4. In any hiring situation, be aware of asking an individual for information about previous names in a non-judgmental way. Also be aware of Employees’ job responsibilities and assignments. If you specifically place a Transitioning Employee in a position with little to no client interaction, it can be perceived as evidence of discriminatory intent if other similarly situated individuals have customer or client contact.

Every Employer must be aware that situations dealing with Gender Identity/Sexual Orientation may arise and understand that prior preparation, training and information may be the best cure for these sometimes difficult morale or legal related issues.