The Rise of Transgender Issues in the Workplace

Although the Civil Rights Act of 1964 established as federal law the prohibition against private employers engaging in discrimination based on race, color, religion, sex, or national origin, it has only been very recently that that the law’s Title VII has been interpreted to include gender identity and gender expression, thereby providing protection to transgender individuals.

In fact, it was only in 2012 that the Equal Employment Opportunity Commission (EEOC) made a ruling that transgender people are afforded protection against employer discrimination under Title VII. Nineteen states, along with the District of Columbia and Puerto Rico, have passed special laws explicitly prohibiting discrimination based on gender identity or expression. Some counties and cities have also gotten into the act by passing their own anti-discrimination local ordinances. These laws are meant to protect transgender people in the workplace.

Not everyone agrees, however, that transgender people should be afforded this kind of protection. Amidst fear that some men will falsely claim to be transgender in order to gain access to women’s restroom facilities for whatever purposes, North Carolina has become embroiled in the “bathroom bill” war.

On Monday February 22 after three hours of heated public comments, the Charlotte City Council passed new legal protections for the LGBT community in places of public accommodation, including bars, restaurants, stores, and taxis. The part of the law that had some people up in arms was the passage saying that transgender individuals have the right to use the bathroom of the gender with which they identify, even if that’s different from their apparent gender or what’s listed on their birth certificate.

Charlotte’s actions did not go unnoticed by the state’s more conservative General Assembly, which responded the following month with House Bill 2, which not only restricted the ability of cities to pass their own local nondiscrimination laws in a broad sense, but also specifically blocked cities from allowing transgender people to use the public bathroom of their choice. Instead, the new state law explicitly bans people from using a public restroom that does not correspond to the gender on their birth certificate. The General Assembly was called into special session on Wednesday March 23 for the vote and Republican governor Pat McCrory quickly signed it into law.

The more liberal-minded politicians and citizens of North Carolina are enraged by these actions on the part of state government, as is a large swath of the business community. Companies with a strong presence in North Carolina that have been vocal by varying degrees in their opposition to the so-called bathroom bill include PayPal, Deutsche Bank, American Airlines, Wells Fargo, Apple, Microsoft, IBM, Google, Bayer, Dow Chemical, and NCAA basketball, which was planning to host nearly a two-dozen high profile games there.

These larger companies tend to have much more progressive policies and practices around LGBT discrimination and related workplace issues. Erring on the side of LGBT protection is probably what makes the best business sense for most companies. After all, if you want to appeal to the Millennial labor pool, you need to be open-minded and affirming of people’s gender identity and expression.

But there are plenty of smaller, less progressive companies that simply don’t have the expertise or perceived need or desire to create workplaces that are truly inclusive. Let me point out a few resources that can greatly help any company that wants to create a positive, inclusive workplace environment that doesn’t exclude transgendered people:

The Office of Personnel Management has issued Guidance Regarding the Employment of Transgender Individuals in the Federal Workplace. And given the recent focus on bathrooms, companies may be interested in the Occupational Safety and Health Administration (OSHA) publication entitled A Guide to Restroom Access for Transgender Workers. These documents can assist companies in forming sensible non-discrimination policies as they relate to transgendered people.

June 25, 2016   Updated :November 16, 2016   gender, gender expression, gender identification, transgender   

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