Bruce Jenner's 20/20 interview not only scored 16.9 million viewers, giving the ABC network its highest ratings in years, but it also started a national conversation about what a transgender person looks like. No longer an oddity, Jenner's revelations about his plans to transition to the female gender put a human face on what had been up to that point a rare appearance. Caitlyn Jenner's Vanity Fair cover continued this conversation. We all now realize we probably know someone who if not already transitioning to the opposite gender, may now have the courage to do so.
Employers work hard to comply with the law and treat their employees fairly and with respect. Not all employers, however, know how to respectfully and lawfully treat transgender individuals. According to The Injustice at Every Turn survey, conducted by the National Center for Transgender Equality and the National Gay and Lesbian Task Force, 25 percent of transgender individuals reported losing a job because they did not conform to gender norms. A staggering 90 percent said they faced some form of transgender-based discrimination.
There is no federal statute that explicitly bans employment discrimination based on sexual orientation or gender identity, although the Employment Non-Discrimination Act (ENDA), which Congress has proposed since 1994, would include these categories in current antidiscrimination laws. President Obama issued a 2014 Executive Order banning federal employers and federal contractors from discriminating against employees based on gender identity. Attorney General Eric Holder announced in December 2015 that Title VII of the Civil Rights Act of 1964 -- the law prohibiting employment discrimination -- included gender identity as part of its prohibition of discrimination based on sex.
The Equal Employment Opportunity Commission ("EEOC") has tried to fill in the gap left by federal law by ruling in several cases that discrimination on the basis of gender identity is sexual discrimination under current federal discrimination law. Most commentators believe that federal courts will follow suit and create federal case law prohibiting employment discrimination based on sexual orientation and gender identity.
Today 18 states and the District of Columbia have laws prohibiting discrimination against all workers because of sexual orientation or gender identity. Six other states protect only state workers from such discrimination. Because federal law and some state laws prohibit discrimination based on gender identity, it is important for employers to understand their obligations and how to treat transgender applicants and employees.
There is some help for employers in setting policies that will treat transgender applicants and employees respectfully and lawfully. For example, Washington State's Human Rights Commission is ahead of the curve in providing official guidance to employers and can be a useful guide to employers across the country. This guidance is helpful for employers in any state to ensure compliance with the law and transgender employees' rights. Below are some tips that will help guide employers with employees in gender transition.
- Employers should permit employees to dress in a way that is consistent with their gender identity or expression, while complying with dress codes and grooming standards.
Employers may ask transitioning employees who have continuing relationships with clients or customers to present consistently as a particular gender throughout the transition. If an employer maintains gender-specific restrooms, transgender employees should be permitted to use the restroom that is consistent with the individual's gender identity. In some situations, employees who are transitioning may require medical treatment for their transition. An employee who seeks medical treatment due to transitioning also must be able to use sick leave, vacation leave, and shared leave in a manner that is consistent with how other employees are able to use such leave. Employers should ask a transgender employee what name and sex-specific pronoun he or she prefers, and use them consistently. Legal company records should reflect the employee's legal name. If that name is not consistent with the employee's gender presentation, an employer can still ensure that all (non legal) references to the employee's name and gender (especially e-mail, photo ID, organization charts and directories, and workplace signs) are consistent with the employee's gender identity and expression. The privacy of the transitioning employee must be respected, but with some transgendered individuals, there may come a time when the transition will become obvious or the employee will wish that their co-workers become aware of the transition. As is the case with sexual harassment, employers are responsible for non-discrimination, maintaining a non-hostile work environment, establishing clear policies on gender identity and expression, and educating all employees as to the policies.In all cases, employers should ensure their workplace is a safe and dignified environment for transgender individuals. Such a culture starts with management's commitment to equality.
Kristin Nealey Meier is an attorney at Seattle-based Ryan Swanson & Cleveland. Reach her at 206.654.2293 or kmeier@ryanlaw.com.
Support HuffPost
Our 2024 Coverage Needs You
Your Loyalty Means The World To Us
At HuffPost, we believe that everyone needs high-quality journalism, but we understand that not everyone can afford to pay for expensive news subscriptions. That is why we are committed to providing deeply reported, carefully fact-checked news that is freely accessible to everyone.
Whether you come to HuffPost for updates on the 2024 presidential race, hard-hitting investigations into critical issues facing our country today, or trending stories that make you laugh, we appreciate you. The truth is, news costs money to produce, and we are proud that we have never put our stories behind an expensive paywall.
Would you join us to help keep our stories free for all? Your contribution of as little as $2 will go a long way.
Can't afford to donate? Support HuffPost by creating a free account and log in while you read.
As Americans head to the polls in 2024, the very future of our country is at stake. At HuffPost, we believe that a free press is critical to creating well-informed voters. That's why our journalism is free for everyone, even though other newsrooms retreat behind expensive paywalls.
Our journalists will continue to cover the twists and turns during this historic presidential election. With your help, we'll bring you hard-hitting investigations, well-researched analysis and timely takes you can't find elsewhere. Reporting in this current political climate is a responsibility we do not take lightly, and we thank you for your support.
Contribute as little as $2 to keep our news free for all.
Can't afford to donate? Support HuffPost by creating a free account and log in while you read.
Dear HuffPost Reader
Thank you for your past contribution to HuffPost. We are sincerely grateful for readers like you who help us ensure that we can keep our journalism free for everyone.
The stakes are high this year, and our 2024 coverage could use continued support. Would you consider becoming a regular HuffPost contributor?
Dear HuffPost Reader
Thank you for your past contribution to HuffPost. We are sincerely grateful for readers like you who help us ensure that we can keep our journalism free for everyone.
The stakes are high this year, and our 2024 coverage could use continued support. If circumstances have changed since you last contributed, we hope you’ll consider contributing to HuffPost once more.
Already contributed? Log in to hide these messages.
