How do you protect yourself from discrimination charges by transgender employees? As in so many areas of potential litigation, the best defense is a good offense.
So take the time now—even if you are unaware of any current transgender employees—to develop and implement policies and procedures covering the common issues that could come up, including:
Every employer should already have a strong, unambiguous antidiscrimination policy in place, but it might not specify transgender discrimination. If yours doesn’t, amend your policy to explicitly define “sex” or “gender” to include gender identity.
These policies can go a long way toward establishing the necessary tolerance and respect in the workplace. Some employees may well find it difficult to accept a transgender co-worker, but it’s the employer’s responsibility to foster an environment that strictly prohibits discrimination and harassment. Otherwise, you risk ending up on the hook for your employees’ intolerance.
Include the updated policy in your employee handbook, employee orientation, and management training, stressing that all employees are welcome and can rely on management support.
Restrooms and Changing Facilities
Which restroom should a transgender employee use? This could be one of the more vexing issues you face regarding transgender employees.
There’s no question that allowing a transgender employee to use the restroom or changing facility reserved for his gender identity could make his co-workers uncomfortable—but those co-workers probably can’t sue you for being required to share a facility with a transgender co-worker. On the other hand, forcing transgender employees to use facilities that correspond with their birth gender could open you up to liability.
If possible, offer single-stall or single-occupant unisex restrooms. These could be used by both transgender employees and their co-workers who are uneasy about sharing facilities with them. Do not, however, require transgender employees to use such facilities.
Transgender employees who enter the “real life experience” stage are generally required to live and work full-time in the target gender in all aspects of their life, including clothing. If you enforce a gender-specific dress code, you should apply the code to gender-transitioning employees in the same way you apply it to other employees of that gender.
Names and Pronouns
Intentional misuse of a transgender employee’s new name and pronouns—and references to the employee’s former gender—could constitute damning evidence of discrimination or harassment. It can also breach the employee’s privacy, create a risk of harm to the employee, and undermine the notion of tolerance and respect at your workplace.
Confidentiality and Privacy
Treat an employee’s gender transition with as much sensitivity and confidentiality as any other employee’s significant life experiences, such as hospitalization or divorce.
Managers, supervisors, and co-workers should use the name and pronouns appropriate to the employee’s new gender. In addition, change all of the employee’s records and identification documents accordingly. Employees aren’t required to obtain a court order to legally change their names or change their genders on records and identification documents.
Note: Gender reassignment surgery and drug regimens could make an employee eligible for protections under the disability discrimination laws. Consult with an attorney before denying a transgender individual disability status or benefits in connection with gender reassignment.