Last year, Time magazine referred to transgender rights as our country's new civil rights frontier. With the emergence of Caitlyn Jenner and popular shows like "Transparent" and "Orange Is the New Black," the issues affecting the more than 700,000 transgender people in the United States have become part of the mainstream discussion.
In addition, we are seeing a fundamental and historical shift in the law. In recent years, government agencies and courts have staked out new employment protections for transgender individuals who, in the past, had mostly been left out of the civil rights movements that have shaped employment discrimination law.
The new legal protections are aimed at ensuring transgender individuals have equal opportunities in the workplace. As the transgender community continues developing a voice and as legal protections expand, employers need to be proactive to ensure transgender applicants and employees are treated lawfully.
Growing legal changes
For some time now, sexual orientation discrimination has been unlawful under Minnesota employment law. Until recently, though, it was thought that federal employment discrimination law did not extend to gender identity or sexual orientation. That view, however, has changed: in 2012, the Equal Employment Opportunity Commission (EEOC) ruled that the sex discrimination prohibition in Title VII of the Civil Rights Act of 1964 extends to gender identity. This same reasoning has also been adopted by a number of federal courts.
The EEOC has made gender identity and sexual orientation rights an enforcement priority and has sued at least three employers in the past year, including Shoreview-based Deluxe Corp., for alleged discrimination based on gender identity. There is also other activity going on at the federal level. By executive order, President Obama has prohibited transgender discrimination by federal government contractors, and the Occupational Safety and Health Administration recently published a best practices guide for employers providing that transgender workers should be permitted to use restrooms that match their gender identity. And recently, the Pentagon announced it is considering lifting a ban on transgender people openly serving in the military.
Still, transgender individuals face significant hurdles in and outside of the workplace. Various studies indicate that compared to the general population, transgender individuals have markedly higher rates of unemployment, homelessness, lack of insurance and incarceration. Transgender individuals are also more likely to be victims of hate crimes and suicide. A 2011 study by the Williams Institute at the UCLA School of Law reported discrimination as a major contributor to these disparities, finding more than 75 percent of transgender individuals had faced discrimination, harassment or mistreatment in the workplace.
Revisiting company policies, practices
Bearing in mind the changing social and legal climate, Minnesota employers should pay attention to transgender issues and take proactive steps to ensure legal compliance.
As a starting point, employers should review and, if needed, update their anti-discrimination, anti-harassment and anti-retaliation policies to include gender identity and sexual orientation as protected characteristics.
In addition, policies need to be more than just a piece of paper. Employers should proactively train managers and employees on policies, workplace conduct standards and how employees should report concerns of discrimination, harassment or retaliation. In the face of a complaint, an employer should promptly investigate and, if improper conduct is occurring, take appropriate steps to stop the behavior, prevent it from reoccurring and prevent retaliation.
Workplace training is particularly important for employers with an employee undergoing a gender transition. As transgender rights expand and social awareness grows, more transgender employees will likely decide to be open about their gender identity and transitioning their appearance. As this occurs, employers may face challenges, including other employees' differing personal and religious views.
Discrimination laws include certain exemptions for religious employers, but other entities must comply with the law regardless of differing employee views. As such, it is important for employers to communicate that, whatever an employee's personal or religious views are, there are standards of nondiscrimination that must be followed in the workplace.
As part of adjusting policies and training, employers should also consider adopting protocols if an employee undergoes a gender transition to ensure a respectful, nondiscriminatory workplace. These include honoring an employee's name change to the extent legally possible, training employees to address the transitioning employee by any new name and using proper pronouns, and training employees on respectful and nondiscriminatory conduct expectations.
Employers also need to be prepared to address potential customer reactions, as the EEOC and Minnesota-based courts have held that employers are responsible for customer discrimination. As such, employers need to anticipate how they will handle any potential disrespectful or discriminatory behavior by customers toward a transgender employee.
Privacy considerations are also important. Gender transitions can involve medical steps or other information that may be confidential information under privacy laws. Employers should train managers and employees to respect a transgender co-worker's privacy and that individual's right to decide whether, when and how to share personal or medical information with others.
Given that the transgender rights movement is still in its early phases, the law and best practices will undoubtedly continue to develop and evolve. As such, employers would be wise to stay tuned and to be vigilant in adjusting policies and practices as we move forward in this new civil rights frontier.