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HR & The Transgender Employee

The views expressed are those of the author and do not necessarily reflect the views of ASPA as an organization.

By Joe Jarret
January 2, 2015

The Transgender Employee:

jarret jan15Recently, the United States Department of Justice (DOJ) took the position that the protection of Title VII of the Civil Rights Act of 1964 extends to claims of discrimination based on an individual’s gender identity, including transgender status. However, today’s professional HR manager doesn’t need a mandate from the federal government to insure that their entity embraces a diverse workforce that insures the dignity of all employees as to gender, ethnicity, race, class, religion, nationality, sexuality, philosophy and lifestyle. Nevertheless, this expansion of Title VII protection is worth exploring in terms of transgender employees.

One of the better definitions of transgender people is offered by the Gay & Lesbian Alliance Against Defamation (GLAAD). GLAAD notes that transgender is the state of one’s gender identity or gender expression not matching one’s assigned sex. Transgender is independent of sexual orientation; transgender people may identify as heterosexual, homosexual, bisexual, etc; some may consider conventional sexual orientation labels inadequate or inapplicable to them. The United States Office of Personnel Management (OPM) advised federal employees that “transgender individuals are people with a gender identity that is different from the sex assigned to them at birth,” and defines “gender identity” as an individual’s “internal sense of being male or female.”

The Law:

Regarding the DOJ’s position on transgender people, a memo issued to all department component heads and United States Attorneys provides that the department will no longer assert that Title VII’s prohibition against discrimination based on sex excludes discrimination based on gender identity. Rather, transgender discrimination will now be included, amounting to a reversal of the DOJ’s previous position.

This is an interesting development considering the fact that many courts have recognized that gender identity discrimination claims may be established under a “sex-stereotyping” theory. Following the Supreme Court’s decision in Price Waterhouse v. Hopkins, 490 U.S. 228 (1989), courts have interpreted Title VII’s prohibition of discrimination because of “sex” as barring discrimination based on a perceived failure to conform to socially constructed characteristics of males and females. However, our courts have reached varying conclusions about whether discrimination based on gender identity in and of itself including transgender status–constitutes discrimination based on sex (see U.S. Attorney General Memo dated Dec. 12, 2014, at http://www.justice.gov).

Despite the various and often conflicting court rulings, the DOJ has determined Title VII’s prohibition of sex discrimination encompasses discrimination based on gender identity, including transgender status. Consequently, the DOJ’s Civil Rights Division is now empowered to file Title VII claims against state and local public employers on behalf of transgender individuals who feel they have been discriminated against.

Training:

Regarding transgender diversity training, the not-for-profit entity Human Rights Campaign suggests that “education and training about gender identity can take the form of small, informal discussions, modules that are incorporated into a larger diversity training curriculum, or full-fledged training and educational programs on transgender issues conducted by outside trainers and facilitators. Communication and diversity training regarding gender identity in the workplace should be comparable to other policy announcements and training initiatives. For instance, if an employer provides online harassment training that incorporates race and sex, it should also incorporate gender identity.” They further suggest that employers:

— Incorporate education about gender identity and gender expression in diversity and Equal Employment Opportunity compliance training programs.

–Ensure all employees have, at a minimum, clear guidance regarding appropriate workplace behavior and the consequences of failing to comply with anti-discrimination policies that include gender identity.

–Ensure that supervisory employees should receive diversity training that includes clear examples of discrimination based on gender identity shortly after starting employment and on a regular basis thereafter. When an employee transitions (the process of changing one’s gender presentation permanently to accord with one’s internal sense of one’s gender) at work, these expectations should be restated.

Regarding employees in transition, the OPM notes the necessity that supervisors remain sensitive to the special needs and concerns of these employees and in so doing, advise employees not to spread information concerning the employee who is in transition. Noting the inappropriateness of gossip and rumor-spreading in the workplace about gender identity OPM recommends that employees be given only general information about the employee’s transition; personal information about the employee should be considered confidential and should not be released without the employee’s prior agreement. Questions regarding the employee should be referred to the employee himself or herself. If it would be helpful and appropriate, employing agencies may have a trainer or presenter meet with employees to answer general questions regarding gender identity. Issues that may arise should be discussed as soon as possible confidentially between the employee and his or her managers and supervisors.

Summary:

It is up to the HR manager to review her/his entity’s policies to insure that gender identity is included in non-discrimination and non-harassment policies to firmly assert the rights of trans-identified individuals in the workplace.


Author: Joseph G. Jarret is a public sector manager, attorney and mediator who lectures on behalf of the Master of Public Policy and Administration program in the Department of Political Science at the University of Tennessee, Knoxville. He is the 2013-2014 president of the E. Tennessee Chapter of ASPA.

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