Sharpen Your FOCUS: Perspectives on Workplace Diversity 

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.