Accommodating Transgender Workers
The U.S. Department of Justice (DOJ) recently announced a reversal of its stance regarding whether discrimination based on sex includes discrimination based on an individual’s gender identity and transgender status. The DOJ concludes that, under the 1964 Civil Rights Act Title VII, employees are protected from employer discrimination based on transgender status or gender identity. Title VII prohibits employers from discriminating against employees based on protected characteristics such as race and gender. We recently wrote about the DOL ruling on transgender employees.
Impact on Employers
While the DOJ’s authority to file discrimination lawsuits is limited to government employers, this is a significant ruling for all employers because it further solidifies the federal government’s position on gender identity rights. The more unified position by the federal government on this issue may influence courts and state governments to adopt similar positions when claims are filed against employers in the private sector, so, now is a good time to examine your organization’s ability to accommodate transgender workers.
Beyond the costly litigation that could ensue if a transgender worker feels discriminated against, transgender workers will be more happy, engaged and productive in environments where they feel comfortable. Organizations that strive to accommodate transgender workers will also likely instill strong feelings of loyalty in transgender workers, reducing turnover costs and potentially attracting other talented transgender workers.
Accommodation Best Practices
There are several best practices that employers can utilize in order to avoid potential costly litigation and to make transgender workers feel more welcome in the workplace.
One of the first and most important steps in accommodating transgender workers is to create a welcoming environment where all employees feel comfortable and can be productive. Management should create an atmosphere of inclusion and tolerance in the workplace and encourage employees to do the same.
Many transgender individuals choose to live their everyday lives as the gender they identify with. Thus, employees should be able to work in a manner and in environments that are consistent with their gender identities. Management and employees should use the names and pronouns associated with the gender identity of the transgender worker’s choice. Intentional misuse of names or pronouns, or reference to the worker’s former gender by management, could be considered harassment.
In addition, there is often a transition process associated with identifying as a different gender. This process may involve name changes, medical steps and changes to identification documents. It is important for management, as well as fellow employees, to acknowledge transgender employees as the gender they identify with, regardless of whether a transgender employee has recently begun or completed the transition process.
While it is important for employers and employees to treat transgender employees in accordance with their specific gender identities, employers must also provide adequate restroom access to transgender employees. According to the Occupational Safety and Health Administration (OSHA), all employees must have access to available toilet facilities in the workplace. In addition, OSHA advises employers that all employees should be given access to restroom facilities that correspond with the gender they identify with. By requiring transgender employees to use restrooms only associated with their sex at birth, employees are restricted from working in a manner consistent with their gender identity.
While providing transgender employees with access to single-occupancy or gender-neutral (unisex) bathrooms is a good step toward making them feel comfortable, transgender employees should not be required to use these specific facilities. Doing so would segregate transgender employees from fellow workers and could be viewed as a discriminatory practice.
It is best to establish a workplace that is inclusive and welcoming. Employees who feel safe and welcome in the workplace will be happier and more productive at work. By creating a hospitable environment for all employees, employers can avoid litigation and attract and retain talented employees.