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!
- 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.”
- 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.
- 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.
- 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.