New legislation coupled with publicized transitions from male to female has created awareness and sparked conversation about gender identity and gender expression. Many managers want to do the right thing but find themselves struggling with how to properly handle workplace issues relating to transgender employees and those who have identified themselves as non-binary (a description referring to those who do not identify as being male or female). As such, employers must ensure the proper treatment of employees who choose to identify with or express a gender different than that assigned to them at birth, or no gender at all, to minimize negative publicity and/or litigation.
The Legal Landscape
The federal Equal Employment Opportunity Commission (EEOC) has issued guidance stating that discrimination and harassment based on gender identity or gender expression violates Title VII's prohibition of sex discrimination. Notwithstanding the EEOC's guidance, federal courts are split regarding whether the scope of Title VII's prohibition of discrimination on the basis of sex includes gender identity. The U.S. Supreme Court is slated to end this dispute this year in EEOC v. R.G. & G.R. Harris Funeral Homes, Inc. when it is expected to rule on whether an employee's discharge on the basis of transitioning or transgender status violates Title VII's prohibition against sex discrimination.
Federal trial courts also have started to grapple with the difficult determination of whether the Americans with Disabilities Act (ADA) requires employers to accommodate employees suffering from gender identity disorders. In doing so, courts are ruling on whether Section 12211(b)(1)'s carve-out from the ADA, which states that "gender identity disorders not resulting from physical impairments, or other sexual behavior disorders" are excluded under the ADA.
In a 2018 case, Doe v. Massachusetts Department of Corrections, a Massachusetts federal court held that gender dysphoria and related disorders may qualify as a disability under Title II of the ADA. The court reasoned that gender dysphoria has a physical etiology and thus would not fall under Section 12211(b)(1)'s carve-out.
Employers must remain mindful that even if an employee's gender identity or expression does not necessarily entitle the employee to ADA accommodations, other conditions (for example, stress, anxiety, and depression) sometimes associated with the difficulty of being transgender or non-binary may qualify an employee for accommo-dations under the ADA.
In addition to federal law, employers must be aware of their obligations under state and local laws. Twenty-one states including Connecticut, Massachusetts, New Jersey and New York, as well as the District of Columbia, have adopted laws explicitly prohibiting discrimination based on gender identity. The New York City Commission on Human Rights also has issued legal enforcement guidance stating gender discrimination prohibitions of the New York City Human Rights Law (NYCHRL) cover gender identity and gender expression. Such guidance makes clear that an employer's using a name or pronoun other than that with which an employee identifies, mandating that transgender or non-binary employees use a single-occupancy restroom or the facility that does not align with their gender identity, or imposing different dress code requirements on its employees based on gender violates the NYCHRL.
In light of the myriad of anti-discrimination requirements, employers should take certain actions to minimize their litigation risk.
Anti-Discrimination and Anti-Harassment Policies
Employers should begin by reviewing all their anti-discrimination and anti-harassment policies. Anti-discrimination and anti-harassment policies should cover "gender identity" and "gender expression." In addition to advising the workforce that the company's anti-discrimination and anti-harassment policies cover gender identity and gender expression, employers should be proactive and establish policies and best practices that protect their transgender and/or non-binary employees.
For example, including policies that invite employees to confidentially speak to Human Resources, management or a designee regarding gender identity or gender expression issues or concerns may help an employer avoid accusations of discrimination due to the employee disclosing such issues or concerns to another colleague who is untrained in how to respond.
It is important that such a provision assures confidentiality but also permits the employee to choose when, how and to whom in the organization they wish to disclose their true gender identity and/or expression. Allowing the employee to engage in an open dialogue will help the employer understand the employee's needs and the best ways to accommodate those needs.
Use of Preferred Names
Employers should also consider allowing employees to use their preferred name instead of their legal name, unless use of the legal name is required due to the nature of the document (for example, payroll, tax forms, and benefit forms).
In New York City, employers must use the employee's preferred name. Employees who have a gender identity other than that assigned to them at birth or who do not associate with a gender often feel comforted by not having to use the name on their birth certificate, which may "out" them as a different gender and does not correspond to their true identity.
Employer forms should also be reviewed and amended to permit applicants/employees to use alternative names (where legally permitted) and self-identify as the gender or non-binary gender designation of their choice instead of limiting the gender classification to "male" or "female."
Employers should permit transgender employees to use their chosen name on business cards, e-mail addresses, nameplates, company ID cards, schedules, and other documents that their co-workers may access. Once the employee legally changes his/her name, his/her W-2 and benefits forms can be updated. Importantly, employers must not request documentation from their transgender and non-binary employees that they do not request from other employees.
Use of Preferred Pronouns
Has the employee provided designated pronouns? If so, only those designated pronouns should be used when referring to that employee. This also covers if an employee wishes to refer to himself/herself using the plural "they."
Employers in New York City are required to use an employee's preferred pronoun. Employers may want to consider allowing employees to add their preferred gender pronoun to their e-mail signature so that each employee is referred to using the cor-rect gender pronoun by those with whom they do business. Doing so also empowers employees to decide how, when and to whom to disclose their true gender identity and/or expression.
Employers would also be wise to update their appearance policies. Grooming and dress code policies are other examples of where transgender and non-binary employees likely will need some flexibility. Employers in New York City are prohibited from imposing different dress code requirements on employees of different genders. An employee should be permitted to dress in a manner that conforms with his/her gender identity. Moreover, employers should not (and in the case of New York City cannot) prohibit employees from using makeup, wigs, or hairpieces based on their anatomy or gender classification at birth.
Although employers still can require that transgender and non-binary employees dress appropriately as long as the policy applies to all employees, they should consider eliminating gender-specific restrictions or requirements.
Use of facilities is another big issue employers need to contend with to ensure that transgender and non-binary employees are protected and comfortable at work. This is also the area where employers may receive the largest pushback from other employees.
Regardless of how other employees feel, employers must be mindful that the Occupational Safety and Health Administration (OSHA) and certain states and/or municipalities, such as New York City, require that all employees have access to sanitary restroom facilities that correspond with the employee's identifying gender. Transgender and non-binary employees may request to use a restroom that corresponds with their identifying gender, which for non-binary employees may include a request to be able to use the men's room or the women's room on any given day at their own choosing, or an alternative unisex bathroom.
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