Tips for Avoiding Transgender Bias Claims

September 29, 2011

OK, as you know, this is a continuation from a previous blog posted on Monday, September 26, 2011.

Potential litigation came from so many different angles, so, let’s look at this one from the point of view that the best defense is a good offense. Take this opportunity, even if you are unaware of any current transgender employees, to develop and implement policies and procedures covering the common issues that could come up. Keep in mind, some employees may be uncomfortable with the notion of a transgender person working the workplace. As with any other protected class they will have to get over it!

  1. Antidiscrimination policy

Employers should, generally speaking, have a strong policy against harassment already in place, but it may not list transgender discrimination as one of its protected classes. If it does not, simply amend your policy to define sex, or gender, as “to include gender identity.”  DON”T use “transgender.”

  1. Restrooms and changing rooms (to include locker rooms)

Many of you probably recall that when we do the mandatory harassment training we always bring this issue up. It hasn’t changed. Determining which restroom a transgender employee should use could be perplexing. Allowing the employee in question to use the restroom or changing facility reserved specifically for him (or her), may cause a ripple with co-workers. If possible, offer single-stall or single-occupant unisex restrooms. These same facilities can be used by other employees who are uneasy about sharing facilities with a transgender co-worker. This creates the best of both worlds as they say.

  1. Names and Pronouns

Intentional misuse of a transgender employee’s new name and pronoun, (and references to the former gender) could land you in the litigation arena based upon discrimination. Managers, supervisors, and co-workers, should use the name and pronouns associated with the employee’s new gender. In addition, change the employee’s work records to reflect the change. In addition, it has been brought to my attention, that employees are not required to obtain a court order to legally change their names or gender records in the workplace.

  1. Confidentiality and Privacy

Treat the employee’s gender transition with sensitivity and confidentiality as any other employee’s significant life experiences.  Managers, supervisors and human resources, are charged with their responsibility on a day-by-basis anyway. This is no different. In addition, do not be a part of any banter. If you laugh or joke about it with your subordinates you are condoning bad behavior contrary to company policy, as well as state guidelines (California).

In conclusion, the work environment can be challenging and this is just another aspect of it. The times are changing. You can either bend with it or fall to the wayside based upon the ridiculous cost associated with litigation. A true zero tolerance policy is the only way to go.

Federal Agency Offers Guidelines on Transgender Workers

September 26, 2011

I don’t have to tell you that the workplace is constantly changing. Some of the reasons include over regulation and others include the variety of individuals that are appearing in the work environment. Sexual orientation is the most recent issue that has captured the attention of the Feds. The federal “Office of Personnel Management” (OPM) has now issued guidelines addressing how to “handle” the employment of transgender workers.

First, I believe it is important to understand the terminology. Transgender individuals are people whose gender identity is different from the sex assigned them at birth. The term transgender includes:

  1. Transsexuals-Those who have had gender reassignment (surgery) or live permanently and exclusively as a gender other than their birth gender.
  2. Crossdressers and transvestites-Those who dress according to the appearance norms of the gender that was not their birth gender some, or all of the time.
  3. Genderqueer, intergender, or andogyne-Those who identify with neither gender or with both.

Keep in mind that some transgender employees may pursue gender transition, a process tha can include therapy, hormones, and possibly surgical procedures, or any combination. The final pre-surgical stage of transition is known as the “real life experience” which means that they are living full-time in the gender role consistent with their gender identity. Normally, this is when employers find out that an employee is transgender and undergoing a transition. This is when it gets tough. Employers, especially in California, have to protect the employee from his or her co-workers to prevent discrimination.  It is also important to note, that the gender reassignment surgery and drug regimens could make an employee eligible for protection for disability status or benefits.

Now, let’s understand, there is no federal protection, as of yet, but understand under state law (approximately fourteen states), employers cannot inquire into an applicant’s or employee’s status as transgender. Needless to say, managers and supervisors are prevented from harassing or retaliating against an employee because of his or her transgender status. This also means that the employer is placed in a position to have the proper personnel policies in place that informs their entire workforce that such harassment will not be tolerated.

As I told you last week this will be in two parts because I believe in keeping the articles relatively short. The next article will appear later this week and will include tips for avoiding transgender bias claims.

Update on Pending Legislation

September 19, 2011

There are several employment-related legislation pending in Sacramento that you should keep your eye on. They are as follows:

Mandatory Unpaid Bereavement Leave (A.B. 325)

This proposed bill has reared its head before under Schwarzenegger in 2007 & 2010 but was not signed. Now, under Brown, proponents are hoping he will sign it. If Gov. Brown does sign it, employees would have the right to take up to three days off because of the death of a spouse, child, grandparent, grandchild, or domestic partner. The strange part is they have up to 13 months of the death to take the time off! Not to mention how many times employees have already killed off their grandparents. Not sure why they are putting such an extended period of time on this bill. I will keep an eye out on this one.

Use of Credit Reports (A.B. 22)

Many of you have heard me preach about this one before. This bill would prohibit employers from obtaining a consumer credit report for employment purposes unless:  (1) the information is substantially job-related, and (2) the position of the applicant for whom the information is sought is managerial, in law enforcement, in the state Department of Justice, or a position for which the information in the report must be disclosed by law or obtained by the employer.

 By the way, substantially job related simply means that the position sought involves access to money, assets, or confidential information which does give the employer some flexibility.

Mandatory Paid Sick Leave (A.B.400)

You may recall that I mentioned this one earlier this year. It has run into some obstacles but it is still out there. This bill would require employers to provide California employees seven or more days in a calendar year with paid sick leave. It is accrued at a rate of at least one hour for every thirty hours worked. Employees could use accrued sick leave, beginning on the 90th calendar day of employment, for diagnosis, care, treatment of health conditions of the employee or a family member, or for leave related to domestic violence or sexual assault.

                These are a few. Next week, I will be doing a two-part piece regarding new federal guidelines for transgender workers.  Stay tuned!

The Upcoming Holidays-Tips on Religious Accommodation

September 12, 2011

With the holidays quickly approaching I am sure we will start getting our usual calls regarding the obligation an employer may have for religious accommodation. First, and foremost, employers should understand that the law currently does not require an employer to provide a religious accommodation if doing so would pose an “undue hardship” but understand the burden will be on the employer to demonstrate undue hardship. Take the following into consideration:

 “Undue hardship” shall mean “an accommodation requiring significant expense or difficulty (including a significant interference with the safe or efficient operation of the workplace or a violation of a bona fide seniority system).” Factors to be considered in determining whether the accommodation constitutes an undue economic hardship shall include, but not be limited to:

  • The identifiable cost of the accommodation, including the costs of loss of productivity and the cost of retaining or hiring of employees or transferring of employees from one facility to another, in relation to the size and operating cost of the employer.
  • The number of individuals who will need the particular accommodation to a sincerely held religious observance or practice, and
  • For an employer with multiple locations, the degree to which the geographic separateness or administrative or fiscal relationship of the facilities will make the accommodation more difficult or expensive.

Now, keep in mind, the liability for the failure to provide an accommodation may include reinstatement, back pay, compensatory and punitive damages and attorney’s fees. Employers should take caution when determining whether or not a religious accommodation is a “reasonable” one or whether it causes an “undue hardship”. 

Employers should consider taking the following actions to help ensure they are not in any violation:

  • Review their procedures and policies, particularly those that prohibit religious discrimination, govern requests for religious accommodation, and/or set requirements with respect to personal appearance (dress code policies);
  • Review job descriptions to ensure that the essential functions of each position are described accurately; and
  • Review the need to provide religious accommodations with Human Resources or call us to help ensure supervisors understand the need to engage in an individualized interactive process with employees who request religious accommodations and consider relevant factors before granting or denying a request.
  • Be aware that a request for a religious accommodation, which might have been denied in the past, may need to be revisited to ensure compliance.

Employers should ensure that all requests for religious accommodation are analyzed on an individual basis and ensure that all applicable policies are carefully reviewed.

Clarification: Employers Can Deduct For Partial-Day Absences of Exempt Employees

September 6, 2011

There still appears to be some confusion regarding the issue as to whether or not California employers may deduct partial-day absences from an exempt employee’s accrued vacation without fear of rendering the employee non-exempt. Although partial-day deductions have been permitted under federal law for a number of years, California law had been in limbo since a 2002 opinion letter from the Division of Labor Standards Enforcement (DLSE) suggested that such deductions may jeopardize exemptions under the “salary basis” test and expose employers to significant risks of having to pay overtime to exempt workers. However, in Conley v. Pacific Gas & Electric, which was decided in July 2005, confirmed that employers can make partial-day deductions from vacation or PTO banks and also suggested employers may have more control over when employees can use vacation time than previously thought.

In Conley, a group of exempt PG & E employees filed a class action, disputing PG & E’s classification of all exempt PG & E employees. Arguing that PG & E’s express and documented policy of deducting partial-day absences from the banked vacation of exempt employees rendered them non-exempt as a matter of law, the employees claimed years of unpaid overtime. The trial court disagreed and refused to certify the class. The Court of Appeal affirmed and found for the employer.

Although the Court agreed that a reduction in actual compensation for partial-day absences would defeat exempt classification, they found no such reduction in Conley. The Court of Appeal distinguished the Conley situation in stating that by deducting from banked vacation, the employer was not reducing compensation, only requiring that employees use accrued vacation when they were actually on vacation.

For employers ready to implement policies related to this new ruling, a bit of advice:

(1) The ruling applies only to accrued vacation or PTO; employers still may not deduct from an exempt employee’s pay for partial-day absences. If the employee has exhausted his or her accrued vacation leave, the employer may be required to give an exempt employee additional time off for partial-day absences.

(2) The Conley court defined “partial-day” as “four hours or more in a single day.” Making deductions in smaller increments have yet to be tested in the courts.

(3) Finally, employers should keep in mind that exempt employees typically work more than enough time to make up for the partial-day absences so use some common sense. If you have an exempt person really abusing the opportunity then that person may be different than the exempt person who rarely takes any time off.

If you have any questions please call.