Recruiting

HI, I’m ‘Caitlyn’ (Yesterday, I Was Bruce)

Online recruiting sounds easy, but it’s also easy to spin your wheels. In today’s Advisor, expert Chris Peterson offers practical tips for defying the odds and getting great results.

With all the things recruiters have to worry about, here’s another: how to treat transgender applicants. The situation is suddenly front and center after the star athlete and “Keeping Up with the Kardashians” star formerly known as Bruce Jenner introduced herself as a transwoman on the cover of Vanity Fair magazine.

Jenner, a former Olympian, revealed her new look and spoke publicly for the first time since completing her gender transformation. Coincidently (or perhaps the government keeps up with the Kardashians as well), the U.S Department of Labor’s Occupational Safety and Health Administration (OSHA) issued guidance about the use of transgender bathrooms in the workplace.
Caitlyn’s transition might not make a lot of sense to your employees who don’t fully understand gender identity. It may also make some employees uncomfortable because it is not something that they routinely encounter. As an employer, however, you have an obligation to ensure that all applicants and employees are protected from illegal harassment and discrimination.


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While transgender employees are not explicitly protected in every state, OSHA’s guidance makes it clear that employers should start planning around transgender issues in their workplaces now. In fact, according to the guidance, an estimated 700,000 adults in the United States are transgender—meaning their internal gender identity is different from the sex they were assigned at birth (i.e., the sex listed on their birth certificate).
It’s not just OSHA that wants employers to get it right. The Equal Employment Opportunity Commission (EEOC) has ruled that employment discrimination based on an individual’s gender identity, change of sex, and/or transgender status is a form of sex discrimination that violates Title VII of the Civil Rights Act.
Also, transgender individuals have successfully asserted claims of discrimination under Title VII on the basis of an employer’s gender stereotyping of characteristics or traits associated with a particular gender. Almost all public- and private-sector employees and job applicants (at companies of 15 or more employees) are covered under Title VII.

Dust Off That Policy!

So, now that this is a topic on everyone’s mind, perhaps it is a good time for employers to address policies and procedures for handling transgender-related issues. First, to minimize the possibility of liability claims, consider reviewing your antidiscrimination policy. Does it address transgender discrimination?
If necessary, amend the policy to define “sex” or “gender” to include gender identity and expression. Include the updated policy in your employee handbook, employee orientation, and management training.


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Bathrooms, Changing Facilities, and More

Also review your policy regarding restrooms and changing facilities. Handling access to gender-specific restrooms, locker rooms, and the like can prove tricky. Allowing transgender employees to use facilities reserved for their gender identity may make coworkers uncomfortable. However, those coworkers probably can’t bring a legitimate legal claim for being required to share a facility with a transgender coworker.
The OSHA guidance clearly spells out that transgender employees should have access to bathrooms that match the gender with which they identify. OSHA said all employees must be able to work in a way that’s consistent with how they live their everyday lives based on their gender identity. This is regardless of whether the employee has actually transformed his or her gender.
According to OSHA, “Restricting employees to using only restrooms that are not consistent with their gender identity, or segregating them from other workers by requiring them to use gender-neutral or other specific restrooms, singles those employees out and may make them fear for their physical safety,” the guidance said. “Bathroom restrictions can result in employees avoiding using restrooms entirely while at work, which can lead to potentially serious physical injury or illness.”
You can consider providing single-stall or single-occupant unisex restrooms that could be used by both transgender employees and their uneasy coworkers. Just don’t require transgender employees to use these restrooms.

You Wear It Well!

Make sure you also review your dress code policy. Transgender employees going through “transition” to their new gender identities are generally required to live and work full-time in the target gender in all aspects of their life, including clothing. If you have a gender-specific dress code, you must apply it to gender-transitioning employees in the same manner you would apply it to other employees of that gender.
In tomorrow’s Advisor, we discuss how to determine when he officially becomes she or vice versa, plus an introduction to BLR’s new research report, Recruiting Best Practices: Finding and Attracting Talent in 2015’s Challenging Business Climate.