Diversity & Inclusion

Transgender in the Workplace: What Employers Need to Know

August 17, 2016

The U.S. Office of Personnel Management defines gender identity as “the individual’s internal sense of being male or female.” You have likely heard a lot of talk in the news about gender identity and how several companies are making adjustments to create a workplace that is welcoming for their transgender customers and employees.

While a lot of these news stories revolve around large corporations, transgender individuals are just as likely to work for small to midsize businesses. So it makes sense for companies of all sizes to make sure that 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 help you maintain compliance with federal and state discrimination laws. 

The Equal Employment Opportunity Commission views discrimination against a transgender individual because of that person's gender identity to be discrimination based on sex.  While this is a weighty topic, there are a few simple things employers can do to mitigate risk and help ensure legal compliance.

Honor privacy
Similar to any other private health, life or employment matter, the birth-gender and/or transition of a colleague should be handled with the utmost discretion.  Information about either should not be released without written permission from the employee and only for purposes that relate to the employee’s employment.

Consider appearance
Beyond standard dress codes, a transgender person 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.

Respecting names and pronouns
Many HR record-keeping systems can accommodate a “prefers to be called” field that can assist in allowing the transgender employee to be called by their preferred name.  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, the transgender employee 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”) should be in keeping with that same identity. 

Sanitary and other facilities
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.  A transgender employee, therefore, 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-gender.

Although this is not a comprehensive list of considerations, this post offers a good start in reviewing your policies to make sure that they are consistent with a diverse staff.  TriNet can offer assistance in making sure that your company meets the highest standards of inclusiveness and diversity.

This communication is for informational purposes only; it is not legal, tax or accounting advice; and is not an offer to sell, buy or procure insurance.

This post may contain hyperlinks to websites operated by parties other than TriNet. Such hyperlinks are provided for reference only. TriNet does not control such web sites and is not responsible for their content. Inclusion of such hyperlinks on TriNet.com does not necessarily imply any endorsement of the material on such websites or association with their operators.

By Janice Scherwitz

Janice Scherwitz is a benefits compliance analyst at TriNet.

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