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H/R Sexual Discrimination Policies

Focus on Transgender Staff Members

Although transgender individuals represent less than 1% of the population, HR policies to protect expanding sexual discrimination rights are something that should be considered.  These policies are expanding in part, because of changes in the laws and law suits against sexual discrimination in the workplace for transgender employees.  For example, this past spring Lakeland Eye Clinic, a Lakeland, Fla.-based organization of health care professionals, paid $150,000 to settle one of the first two lawsuits ever filed by the U.S. Equal Employment Opportunity Commission (EEOC) alleging sex discrimination against a transgender individual.  Lakeland additionally agreed to implement a new gender discrimination policy and to provide training to its management and employees regarding transgender/gender stereotype discrimination. The settlement was approved by the U.S. District Court in Tampa April 9, 2015. "This historic settlement is significant," said David Lopez, EEOC General Counsel.  "It not only is one of the first two lawsuits ever filed by the Commission alleging sex discrimination against a transgender individual, but it also solidifies the EEOC's commitment to enforcing the rights of transgender employees secured by Title VII."

The Law: Title VII of the Civil Rights Act of 1964

The EEOC has held that discrimination against an individual because that person is transgender (also known as gender identity discrimination) is discrimination because of sex and therefore is covered under Title VII of the Civil Rights Act of 1964. See Macy v.Department of Justice, EEOC Appeal No. 0120120821 (April 20, 2012), http://www.eeoc.gov/decisions/0120120821%20Macy%20v%20DOJ%20ATF.txt.

Employers today already have non-discrimination policies based on sex, race and ethnicity in place, but may want to consider defining other minority differences in their HR policies. Transgender individuals are those who make up a class of employees that could be considered in an updated non discrimination policy.

Action Plan

Employers may feel that they are committed to accommodating the needs of all employees.  However how are those needs actually met? Policies and procedures to address topics such as dress codes, medical privacy or facilities usage for all employees should be considered. A well written and implemented diversity policy means that any employee will receive proper protection and a welcome reception within the workforce.  When considering transgender HR policies certain issues must be clearly defined in order to avoid discrimination and support the needs of covered employees.

Best Practices

You may want to think about how your organization will implement a more robust HR nondiscrimination policy.  Best practices for implementing an updated HR nondiscrimination program could include determining how you would transition a transgender employee back into the workforce including:

  • Treating the transsexual individual in a manner consistent with their gender presentation.
  • Including the transsexual employee in planning the steps of transition.
  • Maintaining confidentiality until disclosure is made to the transsexual employee's co-workers.
  • Providing training for co-workers and managers.
  • Demonstrating the support of the company from the highest levels.
  • Modeling respectful behavior toward the transsexual person.
  • Developing a detailed plan to handle transition arrangements such as restroom use and document changes.
  • Applying the same standards to both the transsexual person and her co-workers.
  • Enforcing zero tolerance for harassment.
  • Monitoring the adjustment of the transsexual person and co-workers through long-term follow-up.

Properly addressing the transition items listed above should help overcome discrimination in the workplace as you put into practice these policies and procedures.  You want to ensure that all employees receive the benefit of your plan. Ultimately you want to avoid adverse public relations and lawsuits.   Given the increasing number of employers adopting transgender HR policies, the rise in importance of employer diversity generally, and new legal standards, the issue of transgender employees cannot be ignored for long.  It behooves HR management to begin to address these issues before a crisis arises.

Conclusion

Finally you want to implement a policy that shows that your organization does not discriminate in any way on the basis of sex, sexual orientation, gender identity, or gender expression. Your policy should be designed to create a safe and productive workplace environment for all employees. It should set forth guidelines to address the needs of all employees including transgender and gender non-conforming staff members.  It should also clarify how the law should be implemented in situations where questions may arise about how to protect the legal rights or safety of any employee. Your policy cannot anticipate every situation that might occur with respect to employees, and the needs of each employee must be assessed on a case-by-case basis. In all cases, the goal is to ensure the safety, comfort, and healthy development of your staff members and in the case of transgender employees to maximize the employee's workplace integration and minimize stigmatization.

If you have any questions about sexual discrimination in the workplace, or any other compliance questionsplease feel free to comment below, or send us an email at [email protected].comor reach us by phone tollfree at 8554270427.

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