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June 3 — The national conversation taking place in response to Vanity Fair's article introducing Caitlyn Jenner (formerly Bruce Jenner) to the world should serve as a reminder to employers of the importance of having policies and practices in place to accommodate transgender employees in the workplace, according to attorneys and advocates.
In only the last year to six months, “we have seen tremendous activity on behalf of transgender employees who feel they have been discriminated against,” Janet Hendrick, of counsel in the Dallas office of Fisher & Phillips LLP, told Bloomberg BNA June 3. “This is something I now read about daily, and it has been a burgeoning issue since 2012,” she said, when the Equal Employment Opportunity Commission took the position that Title VII of the Civil Rights Act of 1964's sex discrimination prohibition covers transgender employees. Today, there are an estimated 700,000 transgender adults in the U.S. workforce, Hendrick said.
Traditionally, when an employee decided to transition, he or she would leave his or her current employer and start a new job, Selisse Berry, chief executive officer and founder of Out & Equal Workplace Advocates, told Bloomberg BNA June 3. Today, with more transitioning workers staying at their current employers, easing an individual's transition at work by having policies in place can ensure that everyone is treated with respect and dignity, she said.
The most common questions employers with a transitioning employee ask revolve around restroom use, dress codes, names and use of pronouns, Hendrick said.
“Employers across the country need to become aware of the state of the law in this area and educate themselves to have a plan to be proactive, and not reactive, with these individuals,” she said.
On that front, the Department of Labor's Occupational Safety and Health Administration June 1 issued guidance covering restroom access for transgender workers.
There is a very clear business imperative to aid transgender employees in their transition, Deena Fidas, director of the Human Rights Campaign's Workplace Equality Program, told Bloomberg BNA June 2. “The gender of an individual is not outweighed by their talent and the productivity they can bring to the workplace,” she said. “There has been a dramatic rise in corporate America’s understanding of the transgender community,” both in terms of compliance and liability, but also in a sense of awareness, Fidas added.
• The implementation of gender identity protections. This means having specific language in a non-discrimination policy that cites gender identity and gender expression.
• “Transgender inclusive health benefits.” Up until recently, most commercially available health care plans have categorically excluded transgender operations, Fidas said. These surgeries and procedures were categorized as cosmetic or experimental medical procedures, she noted. However, now companies have begun to negotiate more comprehensive coverage for procedures such as sex-reassignment surgeries and hormone replacement therapy.
• A culture change. There needs to be a comfort level for transgender employees in the workplace, Fidas said. Employer policies addressing gender transitions help managers and HR have practical, sensitive and appropriate conversations about what a gender transition means in the work environment, she added.
Hendrick emphasized that employers should strive to create an atmosphere of tolerance, sensitivity and mutual respect for transitioning workers. As an employee transitions, HR should expect questions, concerns and even complaints from co-workers, she said.
Education is the key to maintaining a respectful work environment, according to Hendrick. Many managers are experiencing this issue for the first time, she said, and need to be prepared when they do get questions.
Employers should be aware that coming out as transgender is ultimately a personal journey, and doing so in the workplace is only one step in that process, Stephanie Battaglino, a consultant and advocate, told Bloomberg BNA June 4.
Battaglino transitioned in 2005 while employed at a life insurance company—where she is still employed today—that at the time had no guidelines, protections or benefits for transgender individuals.
“When you transition, you don’t transition in a vacuum. Everyone in your life transitions with you, whether you like it or not,” Battaglino said. She said she tried to take “a very mindful approach,” by first coming out to close colleagues and friends and asking for their confidence and support. Eventually, Battaglino said she was able to come out to her department head and start the conversation with human resources about the logistics of the transition.
Battaglino said it was helpful that her employer focused on ways to make the transition comfortable. “We worked on it together, collaboratively,” she said.
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