Employers are increasingly focusing on Diversity, Equity, and Inclusion, but DEI policies and practices often overlook issues relating to gender identity.
This blog post provides suggestions for helping to ensure that transgender employees are provided an inclusive, respectful, and supportive work environment.
(1) Update policies. If your Equal Employment Opportunity and Non-Harassment policies do not already include gender identity and expression, it’s time to update them. Policies should inform employees that discrimination and harassment on the basis of gender identity will not be tolerated and that employees have the same opportunity for advancement and benefits without regard to gender identity (as well as other protected characteristics).
Review benefit policies, too. Ideally, healthcare plans cover transgender-related medical care, including hormone therapy and gender-affirming surgeries. Health insurance plans that specifically carve out exclusions for such care could be found in violation of Title VII of the Civil Rights Act. See Lange v. Houston County, GA (11th Cir. 2024). Providing access to mental health resources and care related to gender identity is also a best practice.
(2) Provide education and training. Your workforce may include individuals with limited understanding of the transgender community. To ensure that the workplace is welcoming and respectful for all, provide awareness and sensitivity training to educate employees regarding gender identity and the importance of respecting co-workers.
(3) Address use of workplace facilities. Transgender individuals typically prefer to use bathrooms that correspond to their gender identity, not their gender assigned at birth. If this makes other employees uncomfortable, employers can consider providing gender-neutral, single user options where feasible.
Employers should note that the Equal Employment Opportunity Commission considers “denial of access to a bathroom or other sex-segregated facility consistent with [an] individual’s gender identity” to be unlawful harassment. See EEOC’s recently revised Enforcement Guidance on Harassment in the Workplace, Section II(A)(5)(c). However, we may see litigation by employees who feel that their privacy has been violated or that a hostile environment was created by sharing restrooms with a transgender employee, so it remains to be seen how the courts will rule on such issues. And state or local laws may prohibit use of restrooms designated for the opposite sex.
(4) Allow use of preferred names and pronouns. Another best practice is to allow employees to use their preferred names and pronouns and to update company records and systems to reflect this information. (Again, be mindful of state laws that limit this practice, such as Florida’s “Let Kids by Kids” law, which prohibits public schools from requiring employees to refer to others by preferred names or pronouns that do not correspond to the person’s biological gender.)
The EEOC takes the position that “misgendering” or “repeated and intentional use of a name or pronoun inconsistent with the individual’s known gender identity” can constitute harassment. (See link above). Although innocent mistakes are bound to happen, employers should take corrective action where intentional or malicious misgendering occurs.
If an employee objects to using a co-worker’s preferred pronouns or name on the basis of a religious belief, consult with legal counsel. This is an unsettled, evolving area of the law, and employers should tread carefully and understand the most current precedent available. (My colleague Robin Shea authored a blog post on the EEOC’s new Enforcement Guidance on Harassment and included a great discussion regarding a case involving the intersection of transgender and religious rights).
(5) Create a culture of inclusion. In addition to the suggestions listed above, employers can further promote transgender individuals feeling included at work by doing the following:
- Respecting the privacy of individuals who do not wish to disclose their gender identity and treating that information as confidential.
- Supporting an LGBTQ+ employee resource group if your organization has ERGs.
- Ensuring that employees are aware of complaint procedures and that concerns are addressed expeditiously.
- Demonstrating a zero-tolerance policy toward harassment on the basis of gender identity, with appropriate exceptions for accidental misnaming or misgender or potentially for employees with sincerely held religious beliefs.
- Keeping informed of legal developments in this area and updating policies as appropriate.
- Showcasing leadership’s commitment to inclusivity for transgender employees.
Implementing some or all of these practices can help foster a supportive environment for transgender employees, ensuring they feel valued, respected, and included in the workplace. Additionally, these measures can also help mitigate legal risk.
- Partner
Cara advises employers on ways to avoid litigation and has defended employers in cases involving virtually every aspect of the employment relationship, including discrimination, harassment, and retaliation claims and various ...
Diversity, equity, and inclusion has been the bedrock of our firm since we opened over 75 years ago. As we like to say, it is in our DNA. We believe that to foster diverse leadership and urge diversity of thought, we must do what we can to advance the conversation about diversity, equity, inclusion, accessibility, and belonging in the workplace and the communities in which our workplaces thrive. Through our blog, we share our insights from the perspective of both an employer and employee, regarding emerging issues that affect diverse leaders and workforces. We hope you enjoy our tidbits of legal and practical information, wisdom, and humor. Thanks for joining the conversation!
Subscribe
Contributors
Archives
- October 2024
- September 2024
- August 2024
- July 2024
- June 2024
- March 2024
- August 2022
- June 2022
- April 2022
- March 2022
- February 2022
- October 2021
- June 2021
- May 2021
- April 2021
- October 2020
- May 2020
- March 2020
- February 2020
- January 2020
- December 2019
- June 2019
- March 2019
- December 2018
- October 2018
- July 2018
- June 2018
- May 2018
- February 2018
- January 2018
- November 2017
- July 2017
- June 2017
- May 2017
- April 2017
- March 2017
- January 2017
- December 2016
- November 2016
- October 2016
- September 2016
- August 2016
- July 2016
- June 2016
- May 2016
- April 2016
- March 2016