Legal Issues for Gender-Transitioning Employees
When a gender-transitioning employee of Access Health Care Physicians LLC began showing up for work dressed as a male on certain days and a female on others, management asked in-house counsel Bradley Brown for advice. The nurse practitioner had been hired as a male, and as she went through the transition to female, the health care company had some questions about how to best to support her.
Brown said in an email to CorpCounsel.com that Access Health is a diverse and welcoming employer, and it didnt have to go to great lengths to prepare for the employees transition. But the situation was still somewhat unexpected, and as in-house counsel he wanted to make sure he wasnt overlooking any potential legal issues.
He started a discussion thread on the LinkedIn page of In The House, a web-based professional networking community for in-house counsel, asking for resources and advice from other lawyers who had experience with transgender workers. One of the groups members referred him to the National Center for Lesbian Rights (NCLR), a nonprofit law firm and leading advocacy organization for lesbian, gay, bisexual, and transgender people.
NCLR legal director Shannon Minter told CorpCounsel.com that although the organization primarily serves individuals, employers are increasingly seeking advice about transgender workers. Ive been pleasantly surprised that we are starting to get a significant number of contacts from employers who are calling and saying, We have an employee who is transitioning, and we want to do the right thing. Can you help us determine what that is?
Minter, who transitioned from female to male in the mid-90s, says that even though he was working for a lesbian, gay, bisexual, and transgender (LGBT) organization in San Francisco at the time, he was uncertain how his employer would react. In fact, he recalls, I was terrified.
Now, when advising other employers how best to handle an employees transition, Minter says the information he gives is rather simple: Respect and accept their new identity.
That is the touchstone, he says. If employers can understand that basic concept, almost everything else follows very naturally. Minter acknowledges that if the employer and other employees have known the transitioning worker as one gender, it can be challenging initially to adapt when that worker becomes the other gender.
Employers worry that it will be something people will not be able to understand, but they do, he says. The reality is, after what is usually an amazingly short period, other workers dont even think about it anymore.
But for that to happen, the workplace environment must be supportive. Minter says management should be very clear that it expects coworkers to treat the transitioning individual like any other male or female employee.
Minter frowns on the tendency of some employers to require a transgender employee to use a separate restroom. If leadership makes it clear that the employee is to be accepted as a man or woman in every way, says Minter, people will get used to the fact that the employee is using the restroom that corresponds to their gender identity.
Designating a separate restroom for one employee will send the message that the transgender employee is different from everyone else. That doesnt allow anyone to go through the process of getting comfortable with the new situation.
Access Health chose to take a very proactive approach to its employees transition. Management made a company-wide announcement to help other employees know which name, male or female, to use during the nurse practitioners transition. The company will soon be featuring her in a newsletter, which it will distribute to all its employees and patients.
According to the Human Rights Campaign (HRC), only 16 states and the District of Columbia currently have laws prohibiting discrimination based on both sexual orientation and gender identity [PDF].
But employers are reaching out to NCLR from states that dont have any laws banning discrimination against transgender workers. Many employers generally want to do the right thing by their employees, says Minter. And especially if they have someone who is a valued employee and theyve put resources into training them, he says, employers generally would like to retain those employees.
According to HRC, hundreds of companies already have policies protecting their LGBT employees [PDF]. As of December 2012, 434 (88 percent) of Fortune 500 companies had non-discrimination policies including sexual orientation, and 282 (57 percent) had policies prohibiting discrimination based on gender identity.
Companies recognize that it is just so much better for our national business climate for LGBT people to be fully included an embraced, says Minter, noting that LGBT employees also make up a significant part of the U.S. workforce.
The U.S. Equal Employment Opportunity Commission now accepts gender identity discrimination claims from employees in any state. Last year, the EEOC ruled in Macy v. Department of Justice that gender identity discrimination is covered under Title VII.
Says Minter of the impact of that decision, There was already a very strong judicial trend toward recognizing that Title VII protects transgender employees. Now any transgender employee who is working for a private employer thats covered by Title VIIwhich is most of themwho experiences discrimination can file a complaint with the EEOC.
The EEOC could not provide a breakdown of gender-based discrimination claims post-Macy. But Minter has noted a dramatic increase in employer awareness of the issue following the decision.
Its a big step, he says. Employers are taking note, and they should be.