Compassion can be a wonderful tool in many of the things we do in Human Resources and the labor and employment legal world. It's also a great starting point when an employee walks into an HR or supervisor's office to say they will be gender transitioning.
When accommodating transgender employees at work, quite a number of federal, state, and local laws can come into play, including Title VII, Title IX, OSHA, and the ADA. Ever since the Supreme Court ruled in the Bostock case that the term "sex" in Title VII protects against discrimination based on sexual orientation and gender identity and expression, it has been clear that these employees have legal protections throughout the U.S.
Along those lines, very recently, another federal court of appeals ruled that not just Title VII, but also the ADA, provides protections for employees diagnosed with gender dysphoria (the feeling of discomfort or distress that might occur in people whose gender identity differs from their sex assigned at birth or sex-related physical characteristics). This ADA protection not only means that employers cannot discriminate against transgender employees with this condition but also – very importantly – that employers must reasonably accommodate such employees under the ADA.
Back to compassion.
It is clear that employers have legal obligations and want to stay out of court. On top of those legal formalities, most employers also want to do the right thing by their employees. Employees who are undergoing a gender transition often have concerns that they may be rejected, belittled, and demeaned by not only co-workers but also by supervisors and even HR.
Transitioning employees typically approach their employers in a state of vulnerability. Just as the company will have questions about which bathroom or locker room the employee should use, so too will the employee. And just as the company will question and need to understand which name, pronouns, and dress code should be used, so will the employee. Letting the employee know – right away in the process – that the company is interested in not only following the law but also ensuring that the employee feels safe and accepted there, will go a long way in reaching the correct results for both the company and the employee and also a long way in avoiding legal claims.
For example, once an employee notifies of a gender transition, HR and others should consider contacting legal counsel to go over the laws discussed above; pull out any company policies that apply directly or indirectly to transgender employees (and create new ones if none yet exist); come up with a game plan that includes targeted dates; meet quickly and often with the employee to discuss what the company plans to do; and ask the employee what they are looking for.
A useful thing to say to the employee is that this situation will most likely be a learning process for all involved, including HR, supervisors, co-workers, outside vendors with whom the employee comes into contact, and even the employee themselves. Employers should mention that, in consultation with the employee about privacy issues, training will be done for various co-workers who regularly work with the employee, including education on what transgender status means, proper use of names and pronouns, and related issues. Mistakes may happen, such as a co-worker forgetting to use the proper new name or pronouns at first. True mistakes are not intentional harassment or discrimination, and all involved – including the transitioning employee – must understand that it is a new process for everyone. Explaining these issues to the employee with compassion is a big key to successfully handling gender transition in the workplace.
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