How to Approach Trans and Gender Identity Situations at Work

Updated June 22, 2020 (per the Supreme Court ruling of Bostock v. Clayton County, Georgia).

Not sure how to address certain situations associated with gender identity in the workplace? We've put together a list of scenarios involving transgender, transitioning, and other employees, and how to handle each in the workplace to ensure you're both within the law and treating every employee with the respect they deserve.

1. Mitchell was recently hired for a job. Shortly after starting the new position, Mitchell informed his employer that he was transitioning to become a woman. Not long thereafter, the employer told Mitchell the position was no longer necessary and terminated him. Illegal or illegal?

Gender identity discrimination has been specifically outlined as a federally-protected class, aligning with the EEOC’s Title VII enforcement policies. Even if the role was no longer necessary, juries may see this as a situation where Mitchell’s job was terminated because of the disclosure. Our answer: illegal.

2. Marty identifies as a male and has asked people to refer to him appropriately as “he” and “him,” but his coworkers continually refer to him as “she” and “her.” Illegal or legal?

Yes, mistakes happen on occasion, but if Marty has asked to be addressed appropriately as “he” and “him" and coworkers persistently refer to Marty as "her," this could be perceived as harassment prohibited by Title VII. Our answer: illegal.

3. Michelle, a transgender woman, goes to HR saying that her coworkers have been telling jokes about transgender persons. Illegal or legal?

This situation needs an investigation to determine whether the jokes are an isolated incident or if they’re persistent and severe enough to create a hostile work environment. Our answer: it depends on the severity of the jokes and intent. Ensure you conduct an investigation and follow up with sensitivity training. Also, watch this video on jokes in the workplace.

4. Mateo is asked by coworkers what his former name was when he identified as a woman. Illegal or legal?

While this question could potentially be asked in a sincere, non-harassing manner, it’s inappropriate and disrespectful to ask. Our answer: legal, but not advised -- and a sign that it's time for a sensitivity refresher.

5. Marsha, a visibly transgender woman, comes to work in a tight-fitting dress. Many of her peers complain to HR that her clothing is making them feel uncomfortable, and they request HR do something about it. Illegal or legal?

If the dress is considered appropriate for a non-transgender person to wear to work, then the transgender employee also has the right to wear the dress to work. Our answer: If there's a written, company dress code that would restrict this outfit for everyone, then it's legal to ask Marsha to not wear the dress to work.

6. Marshall, a transgender man, is told he must go to the public building next door to use the restroom because one of his coworkers complained about him using the men’s restroom. Illegal or legal?

This issue is delicate because everyone needs to feel comfortable at work. In a 2015 ruling, the EEOC said that a federal agency that denied unequal access to bathrooms corresponding to gender identity was sex discrimination. While the DOL had announced its enforcement of this issue only to federal contractors in 2015, its enforcement is now extended to all employers per the Supreme Court ruling on June 15, 2020.

In most successful cases, employers have dealt with this issue on a case-by-case basis to find a compromised solution where everyone is comfortable. Our answer: do the same. Develop a compromised solution to avoid any acts of discrimination and to ensure all employees feel comfortable at work. Some ideas may include single-occupancy gender-neutral (unisex) facilities and/or use of multiple-occupant, gender-neutral restroom facilities with lockable single occupant stalls.

Best practices for companies with transgender employees

1. Conduct regular workplace sensitivity and anti-discrimination training of all employees. In this training, explain the many forms that harassment takes, emphasize a no-tolerance rule of harassment of any sort, and create a culture of respect for all persons. Be sure to educate during the training -- simply asking employees not to discriminate may not be sufficient if they don't understand the nuances of discrimination.
2. While most workplaces have an at-will employment policy, you should still ensure you have a solid performance-based reason or other legitimate, documented reason for terminating an employee to avoid claims of workplace bias or discrimination.
3. Refer to individuals by the name and pronouns they prefer and inform coworkers to do the same.
4. Avoid asking probing questions that may put someone in an uncomfortable position.
5. Be sure to immediately address all incidents of harassment with an investigation and appropriate corrective action, where applicable.

For more information or help with your specific situation, please contact our HR experts at HR@Stratus.hr.