Diversity & Inclusion

Gender identity in the workplace: Employers face emerging discrimination issue

When the Olympian and reality TV star the world knew as Bruce Jenner announced this spring that he identifies as female rather than male, the resulting publicity put a new employment issue into focus: Controversy surrounding gender identity is more than fodder for reality TV. It also poses workplace discrimination questions as well as practical dilemmas such as restroom access. Transgender Bathroom

Although Title VII of the Civil Rights Act of 1964 doesn’t specifically address gender identity, more and more that granddaddy of discrimination laws is being interpreted as prohibiting discrimination based on gender identity. In December 2014, a memorandum from then U.S. Attorney General Eric Holder stated: “I have determined that the best reading of Title VII’s prohibition of sex discrimination is that it encompasses discrimination based on gender identity, including transgender status.” He went on to say that the U.S. Department of Justice “will no longer assert that Title VII’s prohibition against discrimination based on sex does not encompass gender identity per se, including transgender discrimination.”

Also, the Equal Employment Opportunity Commission’s (EEOC) position has evolved in recent years. In a May 2015 issue of West Virginia Employment Law Letter, Joseph U. Leonoro, an attorney with Steptoe & Johnson PLLC in Charleston, West Virginia, wrote that in 2006, the EEOC found that Title VII did not prohibit discrimination based on gender identity or transgender status, but in 2012, the agency issued a decision finding that a discrimination claim based on gender identity, change of sex, or transgender status can be pursued under Title VII.

Since then, the EEOC has filed lawsuits using Title VII to support discrimination claims based on gender identity.

Restroom guidance

In June, the U.S. Occupational Safety and Health Administration (OSHA) issued guidance to employers related to restroom access for transgender workers. The document lists its core principle as: “All employees, including transgender employees, should have access to restrooms that correspond to their gender identity.”

An OSHA spokeswoman was quoted in a Washington Post article as saying the policy was developed with the National Center for Transgender Equality, and its release was not related to publicity surrounding the release of Vanity Fair’s Jenner cover.

The OSHA guidance states that all employers under its jurisdiction must “provide employees with sanitary and available toilet facilities, so that employees will not suffer the adverse health effects that can result if toilets are not available when employees need them.”

The guidance also states that gender identity is “an intrinsic part of each person’s identity and everyday life.” Therefore, OSHA has determined that “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.”

Employer tips

As questions about restroom use and other workplace issues arise, employers are looking for guidance on how to avoid discrimination claims as well as how to avoid conflicts related to gender identity. Jamison Green, who writes and speaks about the transgender and transsexual experience, conducted a Business and Labor Resources webinar on the subject in August 2014 in which he outlined the following best practices.

  • Develop a nondiscrimination policy that includes gender identity and expression protections.
  • Include transgender awareness and sensitivity in diversity training.
  • Work to make sure that the human resources department as well as managers and supervisors are prepared to manage issues calmly and respectfully.
  • Be sure that all employees exhibit a respectful attitude.
  • Don’t tolerate harassment.
  • Foster an atmosphere of support.
  • Make sure any LGBT employee resource group supports transgender-inclusive initiatives.
  • Include gender identity in customer service training.
  • Put gender transition guidelines in place.
  • Use a transgender-inclusive health-care plan.