Transgender employees are increasingly seeking legislation allowing them to have rights and protections at work, something they’ve historically lacked.
“Injustice at Every Turn,” a 2011 report from the National Center for Transgender Equality and the then-National Gay and Lesbian Task Force, found that 90 percent of respondents to their survey experienced mistreatment or discrimination at work; 26 percent indicated that they lost work due to their gender identity or expression. Seven years later, there are some new rules to change this.
Although Title VII of the Civil Rights Act does not include sexual orientation or gender identity in its workplace protections, the Equal Employment Opportunity Commission and courts are interpreting it to. According to the EEOC website, Title VII prohibits “discrimination against employees on the basis of sexual orientation and gender identity.”
Despite this progress, Attorney General Jeff Sessions wrote in a 2017 memo that the Justice Department will no longer interpret the law to encompass gender identity, according to The Hill. “Title VII’s prohibition on sex discrimination encompasses discrimination between men and women but does not encompass discrimination based on gender identity per se, including transgender status,” Sessions wrote in the memo.
Additionally, transgender service members have faced a rocky landscape the past few months, starting with President Trump’s announcement of a blanket ban on transgender people serving in the military. This was reversed in late March with a memorandum, which allows some to serve but many to question whether they can come out as transgender or must choose another career path.
Still, some states and local laws are creating rules to protect transgender workers. This is to show inclusivity and to make it apparent that the state supports transgender rights, said Mollie Mantia, director of compliance for ADP’s talent group, a human capital management solutions provider headquartered in Roseland, New Jersey.
While California leads the way in terms of protections for transgender workers, the changes there provide a road map to update company policies and procedures. “It’s really a good step to take a moment, take a look, see what’s out there and see if your company’s policies match, and also to see how you better enable your teams to handle proper training [and] enable a positive work environment,” Mantia said.
Creating Change
One of California’s rules requires employers to conduct anti-harassment training that includes information on gender identity and expression, as well as sexual orientation. “It’s really the first time we’ve seen training incorporated into items like this,” Mantia said.
California also requires that posters be displayed that list transgender rights in prominent places that employees see. The rules in California also include equal access to restroom facilities that correspond to the gender with which the employee identifies, as well as prohibiting discrimination against people who are transitioning or have transitioned, Mantia said.
Both New York City and California enacted preferred name legislation, which allows employees and applicants the right to use their preferred name on anything not legally binding, such as emails. Rather than the binary male and female options traditionally present on paperwork, California also requires a third option.
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Finally, California’s rules include that it is illegal to discriminate against workers for how they choose to dress, unless it’s a business necessity. While Mantia has yet to see the legal definition for “business necessity,” it is a best practice to have dress codes inclusive of all and to not call out certain rules for certain genders.
Mantia also suggested having employee transition plans, or a policy in the company handbook that helps the transitioning person through the process, as well as helping their co-workers foster a culture of understanding.
While California and New York are leaders in the evolving legislation, many other states such as Alaska, Georgia, Massachusetts, Nebraska and Ohio have legislation pending, so it’s important to keep up with local laws as they change.
Why Make the Changes?
All companies have an interest in recruiting top talent that can perform at work, regardless of gender or gender identity. “You want that great candidate experience from the first time they interview because you’re not only interviewing them; they’re interviewing you. You want to set the tone on that from day one,” Mantia said.
But while companies that do not comply to rules on sex discrimination run the risk of legal action, being inclusive of trans workers is just the right thing to do, said Jon Hyman, a partner in the labor and employment practice of Meyers, Roman, Friedberg & Lewis in Cleveland. Employers should aim to be on the right side of history.
“There was a time not in the all-that-distant past where it was legal, for example, in some parts of the country to discriminate against people on the basis of their race in employment,” Hyman said. “Many employers looked at the state of the law, said we don’t really care what the law says; we are going to do what we think is the right thing anyway.” There will come a time when 2018 looks to have similar societal issues, only in terms of LGBT protections and experiences, he said.
“View this not necessarily as a legal issue, but as a civil rights, as a moral issue and then run your business that way,” Hyman said.
Lauren Dixon is senior editor at Talent Economy. To comment, email editor@talenteconomy.io.
