Transgendered Employees: The New Frontier

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Hardly a day goes by when the media is not filling the airwaves with stories of discrimination and mistreatment of transgendered individuals. The labor and employment rules and regulations that apply in the workplace are evolving to raise sensitivity to the issues that affect transgendered individuals and employers alike. Not just a political flavor of the day, transgendered individuals are finding greater protection from discrimination in the workplace and regulatory agencies are engaging in aggressive efforts to eliminate transgender discrimination. All employers need to be aware of these issues so as not to inadvertently violate the civil rights of transgendered employees.

As far back as 2012, the U.S. Equal Employment Opportunities Commission (EEOC) has taken the stance that employers who discriminate against employees based on their transgender status violate the Civil Rights Act of 1964. In landmark rulings in 2015 and 2016, the EEOC ruled that denying employees use of a bathroom aligned with their gender identities and refusing to address transgendered employees by their preferred gender pronouns constitutes discrimination on the basis of sex and thus violates Title VII of the Civil Rights Act. A new frontier has been reached and the EEOC, as well as the Courts are likely to go where no one has gone before. In a recent press release, the EEOC noted: “EEOC considers protecting transgender, lesbian, gay, and bisexual employees to be a strategic enforcement priority. We will continue to assure that transgender employees receive the full benefit pf the federal anti-discrimination laws in all industries.”

transgender bathroom lawsThe EEOC is not the only agency giving close scrutiny to the issue. Recently, the City of Chicago is considering an ordinance to allow transgendered individuals to use the bathroom that corresponds to their identified gender. The uproar throughout the county where states are specifically passing laws denying transgendered employees rights has led to many businesses pulling out of the area or cancelling events in protest.

It is clear that the landscape is changing in this area and employers need to take precautions. Listed below are several helpful tips for employers to avoid being caught up in this relatively new and attractive area of litigation:

  1. Use Preferred Pronouns:
  • Use a transgendered employee’s preferred gender pronouns;
  • On employment applications, consider leaving a blank space to be filled in for the employee’s gender, rather than providing only “male” or “female” options. Offering only 2 options will be used as evidence of insensitivity and ignorance of the issue;
  • Update all internal records to reflect the employee’s self-identified gender;
  • Train all management to use an individual’s chosen pronoun.
  1. Restroom Facilities:
  • Allow trans employees to use the restroom corresponding to their gender identities, unless all facilities are single occupancy facilities;
  • Employers may not require transgendered employees to use single occupancy restrooms, while preventing them from using the shared bathrooms corresponding to their gender identities;
  • Where available, employers should allow transgendered employees to use a single occupancy restroom if that is the employee’s expressed preference.
  1. Changes to Employment Policies:
  • All policies noting that the employer does not discriminate must now include a statement that includes gender identity among the list of protected categories;
  • Leave policies should be revised to take into account transgendered employees’ needs for medical or other leaves including leaves to attend to medical issues associated with the transition;
  • If a transgendered employee requests that you use his/her new name as opposed to a birth name, honor that request. Refusal to do so is direct evidence of discriminatory intent.
  • Train… Train… Train… all HR professionals, members of management and all employees regarding the complexities of transgendered discrimination and how to properly address issues that may arise.

 

With over 30 years’ experience in advising employer law and employees on workplace issues, such as our previous post on Trade Secret laws, let Boznos Law work with you to ensure you are ready to meet the challenges posed by the new frontier involving transgendered individuals in the workplace. Call Bill Boznos today at (630) 375-1958 or contact us through our website at www.boznoslawoffice.com

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