The U.S. Office of Personnel Management defines gender identity as “the individual’s sense of being male or female.” As larger corporations are adopting measures to create an inclusive workplace, it is equally important for small and medium size businesses to create a safe, welcoming environment and make sure their policies are inclusive of transgender employees. This is not just a good step to take in order to retain quality talent but it can also help you maintain compliance with many state and federal laws.
Recently, for example, New York State, passed the Gender Expression Non-Discrimination Act (GENDA) which adds gender identity as a protected class in housing, employment and public accommodations. And California, a state that has in some ways led the way for the country in terms of transgender inclusion, expanded its position in January of 2019 by recognizing “non-binary” as a third gender option. This should make administration less burdensome for people to change gender on state identification and birth certificates.
During the upcoming 2019-2020 term, the Supreme court will hear arguments in a case that will determine if Title VII of the Civil Rights Act of 1964, which prohibits against employment discrimination “because of. . . sex” encompass discrimination based on an individual’s sexual orientation (Altitude Express v. Zarda). Prior to this case, the Equal Employment Opportunity Commission has viewed discrimination against transgender individuals to be discrimination on the basis of sex. The topic is weighty, but employers should consider a few simple acts of inclusion that will assist in mitigation of potential risk and ensure compliance as well as helping to ensure both customers and employees feel comfortable and welcome.
Similar to any other health, life or employment matter, the birth-sex of a colleague, or the transition of a colleague should be handled in accordance with the wishes of the colleague in question. You should assume the utmost discretion but be willing to pivot if the colleague asks you to do so. Information should not be released without permission from the employee and if released, should only be for purposes that relate to the employee’s employment.
Beyond standard dress codes, all colleagues should feel free to dress according to the gender with which they identify. Any company dress code should be applicable to all employees – no matter their gender – and should not be contingent upon gender-identified stereotypes. For instance, requirements of females to wear skirts or dresses and high heels while allowing males to wear flat shoes and pants can get your company into hot water.
Legal names for purposes of compliance with the IRS, Department of Homeland Security, drug testing, and insurance enrollment – to name a few – must be based upon the documentation the employee presents at the time of hire or after going through the appropriate legal process to change his or her name. For the purposes of employee interaction, however, employees should be addressed by the name that conforms to their gender identity and pronouns used to refer to that person (i.e., “he,” “she,” “him,” “her,”, “they”, “their”) should be in keeping with that same identity. The transgender employee also may have a preferred name that employers can ask about, and that preferred name should be used for employee interactions.
The Occupational Safety and Health Administration requires that toilet facilities be provided to employees and that unreasonable restrictions cannot be imposed upon an employee in the use of said facilities. As such, employees should be able to utilize the restroom facility that is appropriate to their gender identity and should not be forced to use a facility that is solely based on their birth-sex.
Although this is not a comprehensive list of considerations, and the laws remain fluid, this post offers a good start in reviewing your policies to make sure that they are consistent with the needs of your employees and can help build a strong company culture. TriNet can offer assistance in making sure that your company meets the highest standards of inclusiveness and diversity.
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