At a recent American Bar Association conference, Sharon McGowan, Director of Strategy for Lambda Legal, asked a session packed with attorneys, “How many folks in the room have had a gender identity issue, or issue with a transgender applicant or employee, come up in their professional lives?” The vast majority raised their hands. “Wow,” she said, “that’s a lot."
Issues of gender identity and gender transitioning in the workplace were prominent topics of discussion at both the American Bar Association’s 11th Annual Labor and Employment Law Conference and the National Employment Law Institute’s 38th Annual Employment Law Conference. As Nonnie Shivers, a partner in Ogletree Deakins’ Phoenix office, told the ABA conference audience, she receives about seven to 10 phone calls per week from employers seeking advice on such issues.
“I don’t think it’s an issue of not wanting to comply,” said Maranda Rosenthal, a senior attorney with Alaska Airlines in Seattle. Most employers want to be compliant with federal, state, and local law, she said, but aren’t sure what’s required of them.
Speakers from both conferences set out to clarify employers’ obligations to transgender employees and provide practical advice for facilitating gender transitions in the workplace.
Uncertainty exists at the federal level regarding gender identity bias under Title VII of the 1964 Civil Rights Act. The EEOC has issued guidance stating that discrimination on the basis of gender identity and harassment related to gender transitions constitute unlawful sex discrimination under Title VII.
However, Attorney General Jeff Sessions recently issued a memorandum stating that the Justice Department will, for purposes of “all pending and future matters,” take the position that Title VII’s sex discrimination prohibitions don’t protect employees on the basis of gender identity.
As Shivers noted, both the EEOC guidance and OSHA guidance regarding restroom access for transgender employees are still available on each agency’s website, despite issuance of the memorandum, indicating that certain workplace protections for transgender employees are “still the law of the land.”
In contrast to the federal landscape, many states and municipalities have passed laws unambiguously protecting employees on the basis of gender identity. Jill Rosenberg, a partner in Orrick, Herrington & Sutcliffe LLP’s New York City office, told the NELI conference audience that “20 states plus the District of Columbia and Puerto Rico . . . and over 200 municipalities” have some type of gender identity and gender expression protections for employees in the public or private sector.
Some jurisdictions—such as California, Washington, and New York City—have gone beyond simply listing gender identity as a protected classification to provide substantive regulations and agency guidance outlining what is required of employers, including rules for restroom and locker room access, use of gendered pronouns, and enforcement of dress codes.
Conversely, some states have enacted “preemption” statutes aimed at blocking local laws that go beyond existing statewide protections. One recent example Rosenberg cited was the Fayetteville, Ark. ordinance prohibiting discrimination on the basis of sexual orientation and gender identity, which was struck down this past year by the Arkansas Supreme Court. The court held that the ordinance provided broader protections than the state’s Civil Rights Act and, therefore, violated state preemption law.
These varying federal, state, and local laws can leave employers wondering whether they should specifically provide protections for transgender employees in those jurisdictions where they are required to do so, or adopt a “one-size-fits-all” policy that provides such protections to all employees regardless of where they work.
Both Rosenberg and Shivers, in each of their respective presentations, suggested that the latter is generally preferable. Shivers stated that companies typically adopt a “common denominator” approach that provides the same protections to all employees, noting that “over 92 percent of the Fortune 500 has gone that route.”
Another area that “will continue to be a hotbed,” Shivers said, is the interplay with the Americans with Disabilities Act. Shivers described a recent federal district court case that has “broken open the gate” with regard to ADA claims as a viable means for protecting transgender employees.
The plaintiff in that case alleged disability discrimination on the basis of her gender dysphoria—a diagnosable condition now found in the Diagnostic and Statistical Manual of Mental Disorders (DSM-V)—which the court found to be a disabling condition under the ADA. Shivers said this case is “one of the very first that has allowed a claim to proceed under the ADA, despite the facial exclusions that are in the ADA itself”—namely, that the ADA excludes “gender identity disorders” from its coverage.
States and localities have looked to disability laws to protect transgender employees as well. Rosenberg said courts and administrative agencies in Massachusetts, Florida, New Jersey, New York, Illinois, Washington, and California have all interpreted state or local disability discrimination laws to cover gender dysphoria.
New York City’s Human Rights Law, in addition to providing disability discrimination protections for individuals with gender dysphoria, requires employers to provide transition-related care. The city’s Commission for Human Rights has issued guidance stating that, in order to comply with the law, employers must provide health benefit plans that provide coverage for, among other things, hormone replacement therapy, voice training, and surgery.
Melissa Brand, EEO Complaints Program Manager for the Consumer Financial Protection Bureau, recommended at the ABA conference that employers proactively establish workplace policies to protect transitioning employees. Being unprepared to handle gender transitions in the workplace “leaves employers and employees both at a disadvantage,” so, as an employer, “you should have a policy in place before you need it.”
Brand suggests the following with regard to adopting such a policy:
Give the policy the weight it deserves—Employers should give gender transitioning policies the “full weight and importance” of all other policies, as opposed to issuing “guidance” documents, “suggestions,” or “FAQs,” so as to send the right message to both transgender employees and their coworkers and managers.
Respect privacy and ensure confidentiality—“Some employees will be very open and will talk about their status,” Brand explains, “whereas others want to keep it confidential.” Decisions regarding who in the workplace should be privy to information about an employee’s transition should be up to the employee. Employers should work with transitioning employees to determine their preferences about telling others that they are transitioning, including who receives such information and how (by staff meeting, email, etc.).
Work with employees on transition plans—Employers should include a process for establishing individualized transition plans with employees. “Every employee’s transition is going to be different,” Brand says, but there are procedures employers can put in place “to add some consistency.” Employers should work with transitioning employees to determine specific courses of action, such as the date on which the employee will begin using a different name or pronoun (which could be immediately) or the need to train coworkers or managers on gender transitioning.
Get ahead of recordkeeping issues—Addressing the types of recordkeeping changes that will be required before the transition occurs is “very important.” Employers should specify in their policies that certain changes can be made without requiring documentation from the employee, which may be unduly burdensome to obtain. These may include name changes on business cards and in email addresses. Employers should also clarify that some other types of record changes, such as name changes on payroll or retirement accounts, may require documentation from the employee.
Designate a “point person”—Having a designated individual serve as a point of contact for gender-transition-related issues can help the employer coordinate all of the necessary actions. This “point person” can facilitate transition planning, act as a liaison with management, and oversee recordkeeping changes, and can also serve as a “consistent expert” on transgender issues in the workplace.
The key for employers is ensuring that the “first time thinking about these issues” isn’t when a transitioning employee approaches you with a problem, McGowan said. “We should be as proactive as possible in thinking about how we’re creating an environment in which transgender men and women know that they will be able to succeed and bring their full selves to work.”
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