Assisting Transgender Employees in the Workplace

Oct 31, 2016

According to recent federal and state data, about 1.4 million adults living in the United States identify as transgender. This is double the amount estimated five years ago by The Williams Institute survey. In Iowa the percentage was lower than most states at 0.31%. The highest percentage was in California with 0.76%.

On October 28, 2016, the United States Supreme Court announced it will hear its first case on transgender bathroom access for a Virginia student. In 2015, the ACLU sued Gloucester County School Board because its policy required all transgender students to use only single-stalled restrooms. In April of this year, the Fourth Circuit found for the student and the District appealed to the Supreme Court.

Effective 2007, gender identity and sexual orientation became protected classes under Iowa Code section 216. The EEOC has similarly found that transgender discrimination is discrimination on the basis of “sex”, as Title VII bars discrimination not only on the basis of biological sex, but because of gender stereotyping, as well. Below is some advice for employers when assisting transgender employees in the workplace:

  1. Be proactive. Employment attorneys and HR employees recommend a discussion with the transgendered employee sooner, rather than later, to discuss issues that might arise at the employer’s workplace, such as dress code, bathroom facilities, etc. Ignoring the issue and hoping it just goes away is the most common mistake employers make. Similar to the interactive process in ADA cases, a court is never going to punish an employer for its efforts to resolve these types of issues in collaboration with the employee. 
  2. Transition while employed. An employee’s transition should be treated with as much sensitivity and confidentiality as any other employee’s significant life experiences, such as hospitalization or family difficulties. If an employee contacts Human Resources or another individual at work to inform him or her of the employee’s transition, the employer should only inform other employees of the transition as the transitioning employee wishes. The employer should work with the employee to create a transition checklist, including advance preparation, announcement date, and transition day. There are many resources online to assist employers and employees. Experience shows that the first few hours on the first day may involve many new introductions, but that the novelty wears off by midmorning and as people get to know the person in the new gender role it will soon become old news. Employers want to discourage gossip and rumor spreading. While general information about the transition is appropriate, personal information about the employee is confidential and should not be released without the employee’s prior agreement (i.e., questions regarding the employee’s medical process, body, and sexuality are inappropriate). Many employers may want to consider having a third-party trainer or presenter meet with employees to answer general questions regarding gender identity.
  3. May an employer enforce dress and grooming standards? Yes. Dress codes are not precluded under Iowa law as long as an employer allows an employee to appear, groom, and dress consistent with the employee’s gender identity. Employers are urged to evaluate and consider eliminating gender specific dress and appearance rules (i.e., women must wear skirts/dresses).
  4. Names and pronouns. Managers and coworkers should use the name and pronouns appropriate to the gender the employee is now presenting at work.
  5. Does the law require employees to eliminate gender segregated restrooms? No. It is still legal in Iowa for employers to maintain gender segregated restrooms. However, employers must permit employees to access those restrooms in accordance with their gender identity, rather than their assigned sex at birth. Employees who identify as both or neither gender should be permitted to use whatever restroom they feel safest in. Employers considering requiring employees to use the bathroom that aligns with their gender should be aware that practice is not only illegal in Iowa, but it also can cause significant negative publicity (i.e., the “Bathroom Bill” in North Carolina.) Employers may also want to consider creating a single use restroom for all employees to use in addition to gender specific restrooms. However, transgender employees should not be limited to using these single use facilities. 
  6. What about religious objections by coworkers? Coworkers with religion-based complaints need to understand that the acceptance of a coworker’s decision to transition has nothing to do with the expectation of changing an individual’s mind or his religious beliefs. Rather, it is an expectation of inclusion and respect at work. Employees with religious beliefs and opinions may still hold those opinions in the workplace, but they should clearly understand the company’s commitment to a nondiscriminatory and inclusive workforce. When confronted with an employee’s religious conflict, employers should be open to the employee’s concerns and make efforts to provide a reasonable accommodation for the employee while keeping in mind that the employee is not necessarily entitled to the accommodation of his or her choice. Courts have acknowledged that the skills needed in today’s increasingly global marketplace can only be developed to exposure to widely diverse people, cultures, ideas and viewpoints. 
  7. Harassment will not be condoned. Harassment based on sexual orientation and gender identity can include malicious conduct, sexual advances, and intentional misuse of gender specific pronouns. It should not be tolerated and should be treated like any other form of workplace harassment under company policy.
  8. Recordkeeping and policies. All employee records (pay accounts, organization charts, training records, benefits documents, and so on) should be changed to show the employee's new name and gender, once the employee has begun working full-time in the gender role consistent with the employee's gender identity and has submitted a request to update his or her records. Similarly, employers should revise anti-harassment and discrimination policies to include gender identity and expression as protected classification.
  9. Sick and medical leave. Employees receiving treatment as part of their transition may use sick leave under applicable regulations. Employees who are qualified under the Family Medical Leave Act may also be entitled to take medical leave for transition-related needs of their families.
  10. Hiring process. During the hiring process, hiring managers and supervisors should be sensitive to the possibility that applicants have transitioned. The name and gender on the application may correspond with the person's current usage; however, background or suitability checks may disclose a previous name that indicates a gender different from the one the applicant is currently presenting. In such cases, hiring managers should respectfully ask whether the applicant was previously known by a different name, and confirm with the applicant the name and gender that should be used throughout the hiring process.
  11. May an employer fire a transgendered employee for poor performance? Yes. An employer is still allowed to fire an employee for nondiscriminatory reasons, such as poor job performance. Iowa law does not grant immunity to transgendered employees. It simply ensures that their transgendered status does not affect the employment decision.

If you have questions regarding this article or other employment issues, please contact Holly A. Corkery at Lynch Dallas, P.C. at hcorkery@lynchdallas.com or 319-365-9101.

 



Category: Employment Law

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