Hunton Employment & Labor Perspectives

On November 3, 2015, Houston voters rejected Proposition 1, a broadly-worded human rights ordinance that would have made it illegal to discriminate on the basis of, among other things, gender identity. Opposition to that ordinance coalesced around the issue of restrooms, with many citizens expressing fear that the law would allow men to use women’s restrooms.

Although the notion of transgender individuals using public restrooms remains a lightning rod for controversy in many places, for some time now employers have had to find practical solutions to this issue. To date, more than 220 cities and municipalities (including Phoenix, Los Angeles, Oakland, San Diego, Denver, Dallas, Washington D.C., Miami, Atlanta, Baltimore, Boston and Detroit) have enacted ordinances which prohibit discrimination in the workplace based on both sexual orientation and gender identity, and eighteen states (Washington, Oregon, Nevada, California, Utah, Colorado, New Mexico, Minnesota, Iowa, Illinois, Maine, Vermont, Massachusetts, Connecticut, Rhode Island, New Jersey, Hawaii and Maryland) have amended their anti-discrimination laws to confer those same protections. Moreover, President Obama signed an Executive Order prohibiting federal contractors from discriminating on the basis of sexual orientation and gender identity.

Employer best practices for addressing issues of gender identity in the workplace have evolved in tandem with the spread of these laws. Some of those practices include:

• Written policies which openly discuss both the rights of transgender individuals in the workplace, and the appropriate way to handle the resulting discomfort some employees may experience. A number of Fortune 500 companies and other national employers have drafted and implemented detailed policies which are designed not only to prohibit harassment against transgender employees, but to educate the work force on this delicate and sometimes off-putting issue. These policies, as well as model policies circulated by advocacy groups, include a “Definitions” section which explains the meaning of such terms as “sexual orientation,” “gender identity,” “gender presentation,” “gender identity disorder/gender dysphoria,” “transitioning,” “coming out,” and “transsexual.” Often these definitions are accompanied by a short discussion of gender roles and culture, an explanation of the transitioning process, and guidance on how to support employees who are engaged in this process.

• Workplace transition plans, or workplace engagement plans, are designed to alleviate awkwardness that gender transitioning may create in the workplace, and to provide a practical guide for both the transitioning employee and the employer. Such plans identify stakeholders – such as managers, human resources partners, key internal customers – who will have to be notified of the planned changes, legal milestones such as name changes, medical leaves of absence, use of restrooms, and practical considerations such as changing security badge photos.

• Restroom protocols for transgender employees have become more standardized. The Occupational Health and Safety Administration (“OSHA”) has issued guidance on this issue, which encourages employers to permit employees to use restrooms based on their gender identity without first requiring medical or legal documentation of gender identity. The best practices discussed in OSHA’s guidance include making available single-occupancy, gender-neutral facilities or multiple-occupant, gender-neutral restroom facilities with lockable single occupant stalls. Employers should check state and local regulations and guidance, some of which require them to permit employees to use restrooms appropriate to their gender identity, rather than their assigned gender at birth. Colorado, Delaware, Washington D.C., Iowa and Vermont are among the jurisdictions with such regulations or guidance.

• Revisiting dress codes, which sometimes may be written in a way that may force employees to conform to gender stereotypes. For instance, a policy which demands “professional attire” in the workplace is gender neutral, and preferable to policies which require men to wear suits and women to wear dresses.

• Using the employee’s chosen name on company documents may require changes to payroll records, e-mail accounts, letterhead, business cards, ID tags, and licensing and professional credentials. Laws regarding changes to government-issued documents vary from jurisdiction to jurisdiction; many require proof of completion of a sex change medical procedure.

• Workplace education and training is important to preventing discrimination and harassment based on sexual orientation and gender identity. The Equal Employment Opportunity Commission (“EEOC”) has issued guidance indicating that it intends to pursue discrimination claims made by transgender people, even though gender identity is not a protected category identified in Title VII. Cases are pending in several jurisdictions.

• Revisiting policies that seek to regulate conduct outside the workplace – for instance, prohibiting social media postings or behavior that might reflect poorly on the employer – may be called for.

Such policies should not be construed to prohibit expression regarding gender identity. Indeed, because policies that touch on conduct outside the workplace are already under attack by the National Labor Relations Board, best practices suggest a reassessment of their efficacy generally, not only in connection with transgender employees.

Tackling these issues proactively and reasonably will help manage the risks associated with gender identity discrimination claims. Employers should consider implementing some or all of the practices described above, particularly if they conduct business in jurisdictions which prohibit discrimination based on gender identity.