Cultivating an Inclusive Workplace: Best Practices Regarding Gender Identity

While no federal law explicitly prohibits discrimination against lesbian, gay, bisexual and transgender (LGBT) employees, the Equal Employment Opportunity Commission (EEOC) interprets Title VII’s prohibition on sex discrimination to include discrimination “because of” gender identity or sexual orientation.  In addition, many states and municipalities have laws prohibiting LGBT discrimination.  Currently, 18 states and the District of Columbia prohibit discrimination based on gender identity and sexual orientation. In addition, Federal Contractors are prohibited from discriminating against individuals on the basis of their sexual orientation or gender identity.  This week’s Tip focuses on transgender employees in the workplace, and provides guidance to employers for developing an inclusive workplace.

Tips for Cultivating an Inclusive Workplace.

Educate and Train.  In order to minimize risk, and to signal an inclusive workplace for all employees, consider training your workforce on the protections afforded to transgender employees per the EEOC’s guidance and any applicable state and/or local laws. Train management staff to lead by example by treating all workers respectfully and fairly. 

Respect and Accommodate Name Choices.  It is a good idea for your organization to respect the name a transgender person is either using, or desires to use.  If possible, you may wish to permit the employee to change profile records, email addresses, and other identifying areas of your HRIS system to align with the individual’s “preferred” name, rather than his or her birth name.   Also, in an effort to foster an environment of inclusiveness, employers should consider using the individual’s preferred pronoun and encourage others to do so. For example, when an individual presents as female, use feminine references like she, her, hers. When a person presents as male, use masculine references like he, him, his.

Ask the Employee.  Before presuming what the best course of action would be, talk with the employee about how, when, or if the employee would like others to be informed of their gender identity and/or transition.  Ask if he or she wishes to inform their manager, co-workers, clients, on their own, or if he or she prefers that this be done by the employer. Learn what information the employee would and would not like to share with others.

Revisit Policies.  In order to foster an environment of inclusiveness it is recommended that you review and update any policies to be mindful of transgender issues. For example, it is a best practice to  remove gender-specific rules from a dress code or grooming policy. It is also a best practice to review and update social media policies to reflect that discrimination by any means, including social media, will not be tolerated. It is also recommended that you review and update any harassment and open door policies to be inclusive of transgender issues.

Restroom Policies.  Employers who want to create a culture of inclusiveness should consider permitting  employees to use the restroom facilities that correspond with their gender identity. Indeed, employers may wish to establish single-occupancy gender-neutral (unisex) facilities, or allow use of multiple-occupant, gender-neutral restroom facilities with lockable single occupant stalls.  Employers should be aware of specific laws, rules, or regulations regarding restroom access in their states and/or municipalities, as well as the potential application of federal antidiscrimination laws.  For example:

·        In April 2015, the DOL’s Office of Federal Contract Compliance Programs (OFCCP) announced it would require federal contractors subject to Executive Order 11246, as amended, which prohibits discrimination based on both sex and gender identity, to allow transgender employees to use the restrooms and other facilities consistent with their gender identity.

·        In April 2015, the EEOC ruled that a transgender employee cannot be denied access to the common restrooms used by other employees of the same gender identity, regardless of whether that employee has had any medical procedure or whether other employees’ may have negative reactions to allowing the employee to do so. The EEOC held that such a denial of access constituted direct evidence of sex discrimination under Title VII.

·        The DOL’s Occupational Safety and Health Administration (OSHA) requires that all employers under its jurisdiction provide employees with sanitary and available toilet facilities, so that employees will not suffer the adverse health effects that can result if toilets are not available when employees need them. They have developed a publication entitled “A Guide to Restroom Access for Transgender Workers” (the OSHA Guide) which provides guidance to employers on best practices regarding restroom access for transgender workers. 

Additional resources for creating an inclusive workplace.

·        www.askjan.com

·        Workplace Gender Transition Guidelines

·        Chevron’s Gender Transition Guidelines 

·        Ernst & Young’s Gender Transition Guidelines

Please contact your Relationship Manager or Service Team with questions about this topic.