Protecting Transgender Employees in the Workplace

In a landmark decision on June 15, 2020 (Bostock v. Clayton County, Georgia), the United States Supreme Court ruled that federal sex discrimination protections extend to gay and transgender workers. This decision makes it federal law that employers cannot fire employees simply because of their gender identity or sexual orientation.

The Supreme Court ruling, along with numerous local and state bills on sexual orientation and gender identity non-discrimination, means that the public is learning more about gender identity issues. However, the laws and the ruling do not only increase public awareness, they impose a clear duty on employers. Here are six recommendations for professional service firms to assist them in properly recognizing the rights of transgender employees.

Do Not Discriminate Based on Transgender Status

The language of Title VII of the 1964 Civil Rights Act, which made it illegal to discriminate “because of sex,” does not explicitly state that the law protects transgender status. However, the new Supreme Court decision means that discrimination based on sexual orientation, gender identity, change of sex and/or transgender status is now prohibited “sex discrimination.” The Equal Employment Opportunity Commission (EEOC) vigorously pursues such discrimination complaints and advises employers to consider sexual orientation, gender identity, change of sex, and/or transgender status as protected classes regardless of past procedures or contrary state laws.

Update Non-discrimination Policies and Staff Training

Firms should ensure that their employment practices policies prohibit discrimination and harassment based on sexual orientation, gender identity, change of sex, and/or transgender status. Firms need to confirm that their human resource professionals receive proper training to handle complaints related to transgender issues.

Do Not Require Transgender Employees to Conform to Gender-related Dress and Appearance Policies

Once an employee informs the employer that they are transitioning to the other gender, the employer should apply and enforce the dress code consistently as it would for other employees of that gender. To avoid discrimination allegations, employers should eliminate unnecessary gender-specific dress and appearance rules from dress codes and grooming policies. This effort can also provide the appropriate protection from discrimination claims based on race, nationality, religion, or other protected classes.

Address Transgender Employees Using Their Preferred Names and Pronouns

All firm employees must use the preferred names and pronouns of transgender employees. Employee personnel records, company directories, and other official company documents should reflect the preferred names and pronouns. An employer’s continued and intentional misuse of names and pronouns—or the condoning of the misuse of names and pronouns by employees, clients, or others related to the design firm’s operations—could result in litigation and liability.

Discomfort of Co-workers Does Not Justify Discrimination

Gender-based stereotypes, perceptions, personal religious beliefs, or comfort levels must not interfere with any employee’s right to work free from discrimination and harassment. The anxiety, confusion, discomfort, and prejudices of employees, supervisors, customers, or anyone else in the workplace does not justify discriminatory treatment of transgender employees.

Transgender Employees Must be Allowed Access to the Bathroom of Their Gender Identity

According to the EEOC, denying any employee equal access to the bathroom that corresponds to the employee’s gender identity is clearly sex discrimination. Employers must not:

  • condition an employee’s right to use the bathroom of their gender identity upon the employee undergoing, or providing proof of, medical procedures;
  • restrict a transgender employee to a single-user bathroom;
  • require an employee to use a bathroom located an unreasonably long distance from the employee’s work station.

Failing to address transgender protection and treatment in the workplace creates a substantial risk of litigation and liability under Title VII of the 1964 Civil Rights Act. Addressing this issue proactively can greatly diminish this liability as well as serve to keep the focus of all design firm employees on the services they are there to perform.

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