Even before Caitlyn Jenner graced the cover of Vanity Fair, one question was the undisputed leader in terms of consistency.  Whether during a consulting phone call or a training seminar, someone always seems to ask: what happens if I hire John and he reports to work as Joanna?  This question is closely followed by: what do I do? And, which bathroom does he use? 

 

Even in 2016, there isn’t an app for that; however, what does exist is enough of a glance into the enforcement practice of the Equal Employment Opportunity Commission (EEOC) to at least provide practical guidance in addressing the most common concerns. 

 

Many states and municipalities have anti-discrimination laws which specifically address the LGBT community and prohibit discrimination and/or harassment based on an individual’s sexual orientation, gender identity and transgender status.  However, employers in a state without such a body of law must still be concerned with potential discrimination and harassment allegations.

 

In 2013, the EEOC released its four-year plan.  That plan included LGBT discrimination among its stated enforcement priorities – even absent any federal law specifically protecting homosexual, bisexual or transgendered individuals.   To accomplish this, the EEOC has relied heavily on its authority to enforce Title VII, including that law’s prohibition against gender-based discrimination.  Meaning, where possible, the EEOC will look at whether the employer’s alleged discrimination can reasonably be attributed to the employer’s application of societal gender stereotyping.    If so, the Commission is likely to accept and investigate the allegation as gender discrimination.

 

So, with all of this in mind, how does an employer deal with an employee who suddenly presents as a different gender?  Here are a few quick tips:

 

First, watch the pronouns.  An employee should be referenced using the pronoun consistent with his or her gender identity.  A transgendered woman repeatedly referred to by male pronouns may file an allegation of harassment.  Conversely, a gay employee who is referred to using the wrong pronoun may also have a claim for gender-based harassment.


Second, respect the employee’s privacy.  If an employee makes his or her transgender status known only to management, it would be inappropriate to share this information with other members of the staff.  This is especially true when the only reasons for sharing the information are to promote gossip, create a disturbance and/or cause embarrassment.

 

Third, intervene, if necessary.  If the transgendered employee becomes the subject of harassment and this is known to management, then management has a duty to put promptly end to the harassment.  It is never okay to turn away from harassment in the work place. 


Fourth, be consistent.  Policies on nicknames, grooming and dress should be applied evenly.  Of course, the employee’s legal name on the W-2 and I-9 is still controlled by the applicable agency’s rules.

Finally, this brings us to the bathroom. The employee uses the bathroom which is appropriate for the gender with which the employee is currently identifying.

 

These issues continue to evolve and all employers should work closely with HR to remain compliant.

 

Author: Edwina Maxwell, VP of Sales & Client Relations, at Modern Business Associates (MBA), received her J.D. from Stetson University College of Law.  Maxwell oversees the development of customized, scalable client solutions, with a focus on top-notch service.  Prior to joining MBA in 2006, Maxwell was employed by the City of St. Petersburg’s Police Department.   www.MBAhro.com