By Caroline Donelan | June 18, 2018 | Lawyer Viewpoint, News & Features, Blank Rome Features
When people think of #MeToo and #TimesUp – movements that have engulfed our national narrative – we immediately conjure images of men exploiting inherent power dynamics in ways that marginalize and otherwise abuse women in the workplace, issues we largely believe to exist between straight men and straight women. What often doesn’t surface in our cultural consciousness is that members of the LGBTQ community remain one of the most underrepresented communities in the workplace. For instance, while California explicitly protects individuals from discrimination based on sexual orientation, gender identity, and gender expression, not all federal courts interpret Title VII to do the same. Similarly, gender dysphoria, a term used to describe the anxiety, depression, or distress a person experiences as a result of the sex and gender they were assigned at birth, is not always protected under the Americans with Disabilities Act.
Just last year, California enacted the Transgender Work Opportunity Act, effective January 1, 2018, making California the first state to require mandatory workplace postings and enhanced training aimed at helping transgender and gender non-conforming workers overcome high unemployment rates (estimated to be three times the national average), prevent discrimination, and increase inclusiveness in the workplace. The California Fair Employment and Housing Counsel recently amended its regulations as well, which provide increased protections for transgender and gender-nonconforming employees, and became effective July 1, 2017.
While many California employers are aware of their new obligations under these laws with regard to privacy, preferred pronouns, and equal access to facilities (each discussed in more detail below), more often than not, they are wholly unprepared when it comes to handling gender transitions in the workplace. “Transitioning” is generally considered the process of changing one’s gender from the sex assigned at birth to one’s gender identity. Transitioning may include coming out to family and friends, changing one’s name and/or sex on legal documents, and/or accessing medical treatment.
When leadership and management are in the dark on how to accommodate a transitioning employee, including the legal rights and responsibilities that arise throughout that process, it is exceedingly difficult to maintain a safe and productive work environment.
For this reason, more and more employers are developing comprehensive plans and policies for employees transitioning in the workplace that recognize the employee’s gender presentation, while at the same time maximizing privacy, continuity, and productivity. As with most workplace policies, “top-down” messaging, management training, and clear policy communication are critical.
Developing and Implementing “the Plan”
If your business decides to implement a formal, written plan for transitioning in the workplace, employees should first know who to contact when they are considering a transition or have already transitioned. This will ensure (a) unified messaging and (b) that the employee is made aware of any transgender-related policies and resources, such as employee assistance programs, LGBTQ community sponsors, and/or the availability of any transition- related healthcare benefits.
From there, a step-by-step plan can be developed that incorporates company policies and guidelines, and solicits and implements input from the employee. For instance, perhaps an initial meeting is held with the transitioning employee and the employee’s immediate supervisor to inform management of the transition, clarify what needs to be done (and should not be done), and ensure that all parties involved are familiar with the relevant policies and available resources. Perhaps a comprehensive, multilevel “transition team” is formed to include a member of senior management, a human resource representative, and/or an LGBTQ employee representative.
In general, the transitioning employee should have involvement into how, when, and in what format co-workers are made aware of the employee’s transition and decide what, if any, training will be given. The plan should always be tailored to the specific needs and requests of the transitioning employee. The Human Rights Campaign’s (“HRC”) Workplace Gender Transition Guidelines provide the following example:
“…one employee may prefer a quick start in which all his/her co-workers and peers are informed about the transition at the end of the work week, and comes to work the following week presenting in the new/desired gender role. Another employee may prefer a more gradual transition, in which colleagues are notified of the transition plan and are provided relevant training, but the employee does not actually present in the new gender role for several weeks. However, in both cases, the same designated contact in human resources is responsible for helping each transitioning employee and the employee's supervisor manage the workplace transition process.”
Irrespective of individual plan details, which should be developed on a case-by-case basis, the strongest and most effective plans have one thing in common: “buy-in” from senior management. Some companies have deputized senior-level “Transition Sponsors” to message inclusion and set proper standards of behavior. To reiterate company support, communications to co-workers (and perhaps clients) should: (a) reiterate the company’s policies against harassment, bullying, and discrimination; (b) indicate that the transitioning employee will be presenting themselves in accordance with their gender identity, which should be respected; (c) advise co-workers about the transitioning employee’s new name and preferred pronoun; (d) emphasize that business will continue “as usual;” and (e) solicit questions to be answered by human resource personnel that will inform the content of further educational training.
During this process, the company should work simultaneously to ensure that any necessary “housekeeping” updates are handled, such as changes to the transitioning employee’s name, records, photographs in ID cards, e- mail address changes, etc.
Additional Considerations Affecting Transgender/Transitioning Employees
California employees have the right to discuss their gender identity, gender expression, or gender transition openly, but they may also choose to keep the information private. Information about an employee’s gender status (such as the sex they were assigned at birth) can constitute confidential medical information under both state and federal privacy laws. Employers should make privacy obligations clear to human resources professionals, managers, and co-workers so they know not to disclose information that may reveal an employee’s private transgender status or gender presentation to others.
Preferred Names and Pronouns
California employees have the right to be addressed by the name and pronoun that corresponds to their gender identity upon request. A court-ordered name or gender change is not required. In fact, the intentional or persistent refusal to respect an employee’s preferred name and pronoun (for example, intentionally referring to the employee by a name or pronoun that does not correspond to the employee’s gender identity) can constitute as harassment and is a violation of California law.
California employers cannot have dress codes that restrict an employees’ clothing or appearance on the basis of gender. Transgender and transitioning employees have the right to comply with company dress codes in a manner consistent with their gender identity or gender expression.
California employers should amend an employee’s official records to reflect a change in name or gender upon request from the employee. Certain types of records, like retirement plans, may require a legal name change before the person’s name can be changed. Most records, however, can be changed to reflect a person’s preferred name without proof of a legal name change. Employers should also update any photo IDs at the employee’s request so the employee is represented accurately.
Safe and Equal Access to Facilities
All California employees have a right to safe and appropriate restroom facilities, regardless of sex. Employees are permitted to use facilities that correspond to the employee’s gender identity, regardless of the employee’s assigned sex at birth. For instance, transgender women are permitted to use the women’s restroom, and transgender men are permitted to use the men’s restroom. Any employee who has a need or desire for increased privacy, regardless of the underlying reason, must be provided access to a single-stall restroom where available. For example, if any employee does not want to share a multi-person restroom with a transgender co-worker, they can make use of this kind of option, if available. No employee, however, can be required to use such a restroom.
No manager, supervisor, employee, or any other individual can require a California employee to provide proof of sex or gender in order to use a particular facility. California employers must implement gender-neutral signage for any single-occupancy facilities (i.e., “Restroom,” “Unisex,” “All Gender Restroom,” etc.), and employers can only make reasonable and confidential inquiries of an employee for the sole purpose of ensuring access to comparable, safe, and adequate multi-user facilities.
Long Term Follow-Up
While it is important to implement policies and plans to guide a transitioning employee before and during the transition period, it is equally important to engage longer-term initiatives aimed at preventing discrimination and harassment in the weeks, months, and even years following an employee’s transition. Behavior that might violate the company’s policies and/or the law can be less obvious over time. There are simple ways to do this. For instance, check in with the employee to determine how they have been treated over time and whether they feel safe and comfortable at work. Ongoing training is another simple and effect tool to maintain a workplace that is productive, safe, and free from discrimination and harassment.
While it is impossible to anticipate and perfectly navigate every situation, developing, implementing, and enforcing clear and inclusive policies on workplace transitions will promote a safer and more productive workplace. Time and again, studies have shown that including and promoting diverse cultural perspectives drives innovation, makes businesses more competitive and profitable, and provides greater opportunities for professional growth.
About the author: Caroline Donelan (firstname.lastname@example.org), a partner at Blank Rome LLP in Los Angeles, counsels and defends domestic and foreign corporations in all areas of employment law compliance and litigation, including wage and hour class actions, wrongful termination, discrimination, harassment, trade secret disputes and data protection, and alleged fiduciary breaches.