Transgendered Employees in the Workplace

Lesbian, gay, bisexual and transgender (“LGBT”) rights continue to gain momentum and awareness in the media, the court system, and the legislature.  The provision of LGBT rights is also gaining traction in the workplace, particularly with regard to transgender employees and applicants.  Historically, transgender employees have experienced high levels of unemployment, discrimination, and harassment at work.  With the increased attention on ensuring LGBT rights in recent years, transgender individuals are beginning to see significant changes in the law promotive of ensuring equal opportunities exist within the workplace.

The term, “transgender,” refers to people whose gender identity and/or expression is different from the sex assigned to them at birth.  For example, a transgender woman is typically used to refer to someone who was assigned the male sex at birth but who identifies as a female.  Likewise, the term transgender man is used to refer to someone who was assigned the female sex at birth but who identifies as a male.   To be considered a transgender man or woman, a person does not need to undergo any medical procedure.

Although there is no federal law at this time which prohibits discrimination against transgendered individuals in the workplace, the U.S. Equal Employment Opportunity Commission (“EEOC”) and courts have begun enforcing the existing anti-discrimination laws in transgender discrimination cases.  In recent years, the EEOC has made it a strategic enforcement concern to investigate situations involving transgender harassment and discrimination.  For instance, the EEOC recognized in 2015 that denying an employee equal access to a common restroom corresponding to the employee’s gender identity is sex discrimination.  In short, the EEOC has recognized discrimination based on an individual’s gender identity may be a viable claim under Title VII under the theory that discrimination based on one’s gender identity is equivalent to sex stereotyping.   Gender-based stereotypes, perceptions, or the comfort level of other people must not interfere with the ability of any employee to work free from discrimination or harassment.  Beyond the EEOC, numerous states and municipalities have passed legislation prohibiting discrimination based on an individual’s gender identity and sexual orientation.

It is important that franchisee owners and their management teams know how to navigate the evolution of transgender rights in the workplace.

• First,  work with your human resources provider or legal counsel to educate yourself on the state and local laws to ensure compliance with all anti-discrimination laws and ensure your company has a strong anti-discrimination policy in place.

• Second, evaluate your dress code and grooming policies to remove any gender specific language which does not serve a legitimate business purpose, and ensure your policies are applied and enforced uniformly.

• Third, train your management teams on the proper use of pronouns for an employee who is transgender or undergoing a transition.  Per the EEOC, an employee should be classified by the gender in which he or she identifies, regardless of whether a full surgical transition has occurred.

• Lastly, be willing to create a gender transition plan for an employee who informs you of a change in his or her gender identity.  This plan will involve the transitioning employee and his or her supervisor.  Its purpose will be to provide clarity regarding bathroom usage, ensure the use of appropriate name and pronouns when communicating, explain the appearance and dress code policy, and designate a point of contact in the event of questions or misunderstandings.

Overall, implement proactive steps now to promote a workplace culture which provides a healthy workplace environment for all employees.

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