Seyfarth Synopsis: With increased attention placed on transgender rights in recent years, employers should pay close attention to transgender discrimination and related issues in the workplace. This post offers some tips for some best practices to minimize risk in managing your workforce.
The Basics. Everyone in the workplace must be mindful of using accurate terminology when talking about gender and gender identity. Here are some common terms that are a good starting point for having respectful conversations.
- Gender Identity: A person’s internal, deeply-felt sense of being male, female, something other or in-between.
- Gender Expression: An individual’s external characteristics and behaviors such as appearance, dress, mannerisms, speech patterns, and social interactions that are perceived as masculine or feminine.
- Transgender: An umbrella term that can describe people whose gender identity or gender expression differ from the sex they were assigned at birth.
- Transsexual: A term most commonly used to refer to someone who transitions from one gender to another, often using medical intervention. The person may also identify as transgender.
- Gender non-conforming: A person who has, or is perceived to have, gender characteristics or behaviors that do not conform to traditional or societal expectations.
What’s the Law?
Although in recent the EEOC has aggressively interpreted the sex-discrimination provision of Title VII to forbid discrimination against transgender employees, no federal statute expressly addresses employment discrimination based on gender identity.
California, on the other hand, has consistently been in the forefront of legislation bolstering transgender rights. In 2003, AB 196 clarified that FEHA discrimination claims based on “sex” include a person’s gender identity or gender-related appearance or behavior, effectively prohibiting employers from discriminating against applicants and employees because of their gender identity or expression. In 2011, the Gender Nondiscrimination Act directly added “gender identity” and “gender expression” as protected characteristics under FEHA, making it explicit that discrimination based on those characteristics is unlawful.
And the DFEH, earlier this year, provided guidance on transgender employee rights in the workplace (which we wrote about here). The new FEHA regulations that went into effect on April 1, 2016, added protections for transgender employees and applicants.
Most recently, Governor Jerry Brown signed into law AB 1732, which will require, beginning in March 2017, all businesses and public buildings to label their single-use restrooms as “all gender” and update signage (rather than having designated “men’s” and “women’s” restrooms). This law may affect your workplace and require updating your bathrooms in the next few months.
Best Practices. Here are some practices to build awareness about transgender issues and ensure a workplace that is inclusive of transgender employees.
- Open Door Policy. Having an open door policy can promote dialogue about the successes and challenges of transgender employees in the workplace, convey to all employees that their voices are valued, and help employers develop best practices to retain and support a diverse workforce.
- Respect privacy rights. Always remember that it is a personal choice whether to discuss openly or keep private one’s gender identity. Employers should not discuss or share an employee’s gender identity without the employee’s permission.
- Provide employee training. Employers should provide diversity training including issues related to gender identity and expression. The training should emphasize that discrimination based on gender identity or gender expression is unlawful.
- Celebrate diversity. A workplace culture should be inclusive of employees no matter their gender identity or expression. Consider establishing an affinity group that transgender and gender non-conforming employees and their allies are welcome (but not obligated) to join.
- Review dress codes. Dress codes should be free of gender stereotypes. Policies that describe what men should wear versus what women should wear may be problematic, as they do not account for employees who are gender non-conforming. These policies should also be enforced in a non-discriminatory manner and allow each transgender individual to dress in accordance with that individual’s gender identity .
Workplace Solutions: Employers can take many steps to create inclusive workplaces and ensure compliance with the law. As always, Seyfarth attorneys are here to help employers evaluate their policies, practices, and procedures to minimize risk and avoid potential liability.