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
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
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
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