Accommodating Transgender Employees: Legal Guidelines for Employers

By Alison Dearden

Back in 2014 the Superior Court of California, County of Sacramento, held that a transgender plaintiff has pled sufficient facts to state a cause of action for employment discrimination. The decision clarifies the Fair Employment and Housing Act (FEHA) anti-discrimination laws as applied to transgender employees. Specifically, the court held that denying transgender employees the right to use gender-identity appropriate facilities violates California’s nondiscrimination laws. Clearly, issues related to transgender employees, especially those transitioning can be complex and sensitive.

In the United States, transgender and gender nonconforming individuals experience twice the rate of unemployment as the general population, and over one-quarter have reported job loss due to their gender identity. Many employers do not have experience managing transgender employees and the unique challenges they can present. Moreover, many employers are unsure about the legal protections transgender employees have under the laws of their jurisdiction.

There are laws that clearly prohibit discrimination against transgender people. California, Colorado, Connecticut, Delaware, Hawaii, Illinois, Iowa, Maine, Massachusetts, Minnesota, Nevada, New Jersey, New Mexico, Oregon, Rhode Island, Vermont, Washington, and the District of Columbia all have such laws. However, their protections vary. Additionally, many cities and counties have passed laws prohibiting gender identity discrimination including Atlanta, Boise, Buffalo, Cincinnati, Dallas, Indianapolis, Kansas City, Louisville, Nashville, New Orleans, and Pittsburgh. Federally, the EEOC has held that discrimination based on a person’s gender non-conformity, transgender status, or plan to transition constitutes unlawful sex discrimination under Title VII of the Civil Rights Act of 1964.

Employers, no doubt, have many questions about how to properly and fairly manage transgender employees, especially during a transitioning period. Transitioning is the process of changing one’s gender presentation permanently to accord with one’s internal sense of one’s gender.

Managing other employees’ reactions

Because this is a unique issue, it can present challenges for supervisors and other employees. Some employees may express support and encouragement, but others may reveal prejudices and animosity.

Management should set a tone of tolerance, sensitivity, and mutual respect. The key is to promptly and effectively address negative reactions from employees. A company-wide meeting with employees to answer any questions about the transition and what behavior is expected of employees will help supervisors and employees understand their obligations not to discriminate against their colleagues.

Employers can also prevent negative reactions by being proactive. Rather than waiting until a situation comes up, management can provide mandatory trainings on transgender issues now. Then, when employees are notified about a colleague’s transition, they will be more welcoming and understanding. Additionally, it is wise for employers to adopt a nondiscrimination policy that explicitly bars treating transgender people differently from other workers.

Restrooms and changing facilities for transgender employees

Employers are legally required to provide workers reasonable access to restroom facilities. The U.S. Department of Labor’s Occupational Safety and Health Administration requires that employers make toilet facilities available so that employees can use them when they need to do so, and the employer may not impose unreasonable restrictions on employee use of the facilities.

California’s recent decision indicates that transgender employees have the right to use gender-identity appropriate facilities in California. Other jurisdictions have similar rulings including Iowa, Washington, Colorado, District of Columbia, New York City, and Federal agency authorities.

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Employers should allow employees to use restroom and locker facilities that match the employee’s current gender presentation. Employers may also want to create a single-use restroom for all employees to use as an addition to gender-specific restrooms. However, employers may not require transgender employees to use a certain restroom as it could be discriminatory and lead to liability risks.

Dress and appearance

Employees who are transitioning will assume the appearance and role of their gender identity. Company dress codes should be applied to employees transitioning to a different gender in the same way that they are applied to other employees of that gender. Dress codes should not be used to prevent a transgender employee from living full-time in the role consistent with their gender identity. It also is important for managers and supervisors to prevent other employees from making discourteous comments about the transitioning employee’s choice of clothing. Again, it is important to create an environment of tolerance, sensitivity, and mutual respect.

Names and pronouns

For transitioning employees, getting identification documents and changing over all identifying information to reflect the right name and gender is an expensive and complicated hassle; it can also take a year or more. Managers, supervisors, and coworkers should use the name and pronouns appropriate to the employee’s new gender as soon as the employee makes the change. Intentional misuse of the employee’s new name and pronouns, and reference to the employee’s former gender by managers, supervisors, or coworkers may lead to allegations of harassment and may also breach the employee’s privacy.

Confidentiality and privacy for transgender employees

An employee’s transition is a private matter and should be treated as such. Additionally, medical information received about individual employees is protected under the Privacy Act. Employees in transition may be concerned about safety or hostility from other employees and may request as little publicity about their transition as possible. This request must be respected.

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