Developing Strategies For Transgender EmployeesEMR015

Speakers:

• Victoria Nolan, Risk and Benefits Manager, Clean Water Services

• Liani Reeves, Attorney, Bullard Law

Learning Objectives

At the end of this session, you will:

• Be able to identify risk issues relating to transgender employees, customers and clients

• Understand best practices and practical approaches for developing policies and plans to address concerns and minimize risks

• Understand opportunities for improving your overall diversity and inclusion strategies

Today’s Agenda

• Two sides to the equation

• OSHA guideline

• Legal perspectives

• Strategies you can implement

• Questions

Two Sides to the Equation

• Increasing awareness• Entertainment/News

• Social Media

• Stereotypes still persist• It is a sexual perversion

• Discrimination still persists• Only 20 states have protections for gender identity

• Increasing impact• Estimated 700,000 adults in US (.03%)

• No census data

• Discrimination carries a halo effect

• Private issue – lived out in public

• Complicated process

The Last to Know

• Coming out is like jumping off a cliff• Fear of job loss

• Fear of harassment

• What is the discrimination policy?• How well is it understood?

• Is gender identity included?

• Will I be accepted or rejected?• By management

• By co-workers

• By customers and vendors

• I’ve already transitioned and looking for an opportunity• Am I out?

• Will I be outed?

Confusing Terms

• Gender / Sex

• Sexual Orientation

• Gender identification

• Gender expression

• Cis gender

• Transgender

• Transsexual

• Gender nonconforming

• Gender Queer

• Gender fluid

• Male to Female (MtF)

• Female to Male (FtM)

• Pre-Op

• Post-Op

• Cross Dresser

• Drag Queen/King

• Stealth

• Open

• Outed

The Bathroom Issue

• Significant source of problems• Employee discomfort

• Potential source of violence

• Employer mis-steps

• Multi state employers

• Mid level managers

• Remote locations

• Social and Legislative push back• Schools

• Public accommodation

• Workplace

• Executive orders for federal contractors

• OSHA Guidelines

OSHA Guidelines

“OSHA’s goal is to assure that employers provide a safe and healthy working environment for all employees”

• Issued June 1, 2015

• Sanitation Standard (1910.141)• Provide toilet facilities

• Reasonable distance

• Prohibits restricting employees

• Prohibits segregating employees

• Best Practice• Single-occupancy gender neutral (unisex) facilities

• For any employees

• Use of multiple-occupant, gender neutral restroom facilities with lockable single occupant stalls

Legal Perspectives

• State Protections

• Federal Protections• EEOC

• DOJ

• White House

States that Protect Gender Identity in Employment• California

• Colorado

• Connecticut

• District of Columbia

• Delaware*

• Hawaii

• Iowa

• Illinois

• Massachusetts

• Maryland

• Maine

(*Protects in public employment only)

• Minnesota

• New Jersey

• New Mexico

• New York

• Nevada

• Oregon

• Rhode Island

• Utah

• Vermont

• Washington

No Federal Law Explicitly Includes Gender IdentityTitle VII

“It shall be an unlawful employment practice for an employer –

(1) to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin[.]”

Price Waterhouse v. Hopkins (1989): The U.S. Supreme Court ruled that sex discrimination includes discrimination based on “sex stereotyping,” or a person’s perceived nonconformity with gender stereotypes.

Macy v. Holder (2012)

• Mia Macy was a job applicant to the Bureau of Alcohol, Tobacco, Firearms, and Explosives (“ATFE”).

• When Macy applied for a job, she presented as male. Shortly thereafter, Macy informed ATFE that she was transitioning from male to female.

• Subsequently, ATFE informed Macy that another applicant had been hired because that applicant was farther along in the background check process.

• Macy filed a complaint against ATFE with the EEOC alleging that the reasons proffered for not hiring her were pretextualand that the true reason was because of her “sex, gender identity (transgender woman) and on the basis of sex stereotyping.”

Macy v. Holder (continued)

• EEOC Ruling• Title VII bars discrimination not only on the basis of biological sex, but

because of gender stereotyping, as well.

• Macy could establish a viable sex discrimination claim on the ground that ATFE believed that biological men should present as men and wear male clothing, or, alternatively, that ATFE was willing to hire a man, but not a woman.

• Either way, the EEOC concluded, transgender discrimination is discrimination “based on . . . sex” and violates Title VII.

Implications of Macy

• Not necessarily dispositive as a legal matter.

• As a practical matter, employers are on notice that EEOC will enforce Title VII for discrimination and harassment against transgender employees.

• EEOC Website: “EEOC interprets and enforces Title VII's prohibition of sex discrimination as forbidding any employment discrimination based on gender identity or sexual orientation.”

• 2012 Strategic Enforcement Plan: EEOC listed coverage of LGBT individuals under Title VII’s sex discrimination provision as a top enforcement priority.

EEOC v. Lakeland Eye Clinic

• Employee had performed her duties satisfactorily throughout her employment.

• After she began to present as a woman and informed the clinic she was transgender, the employer fired her.

EEOC v. R.G. & G.R. Harris Funeral Homes, Inc.

• In 2007 Amiee Stephens was employed by Harris as a funeral director/embalmer.

• In 2013, she notified employer that she was undergoing a gender transition from male to female and would soon start to present in appropriate business dress consistent with her identity as a woman.

• Two weeks later, the owner fired her, telling her what she was “proposing to do” was unacceptable.

EEOC Litigation Strategy

• EEOC sued both employers alleging such conduct violates Title VII which prohibits sex discrimination, including that based on gender stereotyping.

• Cases announced as part of the EEOC's ongoing efforts to implement its Strategic Enforcement Plan.

• Lakeland Settlement: $150,000 to employee; neutral job reference; revise policies to include transgender protections; training; monthly reports; 2 years of monitoring.

• R.B. & G.R. Harris Status: Court issued decision that acknowledged “even though transgendered/transsexual status is currently not a protected class under Title VII, Title VII nevertheless ‘protects transsexuals from discrimination for failing to act in accordance and/or identify with their perceived sex or gender.’”

Department of Justice

• U.S. Attorney General Eric Holder announced in December 2014 that the Department of Justice will consider discrimination against transgender people covered by Title VII.

• This was a reversal for the department and means that it can sue government employers for discriminating against employees or job candidates for being transgender.

Southeastern Oklahoma State University• Rachel Tudor began working as an Assistant Professor in

2004. At the time of her hire, Tudor presented as a man.

• In 2007, Tudor, consistent with her gender identity, began to present as a woman at work.

• Throughout her employment, Tudor performed her job well, and in 2009, she applied for a promotion to the tenured position of Associate Professor.

• Southeastern’s administration denied her application, overruling the recommendations of her department chair and other tenured faculty from her department.

• In 2010, Tudor filed complaints regarding the denial of her application for promotion and tenure. Shortly thereafter, Southeastern refused to let Tudor re-apply for promotion and tenure despite its own policies permitting re-application.

• In 2011, Southeastern terminated Tudor’s employment because she had not obtained tenure.

Southeastern Oklahoma State University (continued)• U.S. Justice Department filed lawsuit against University for

violating Title VII by discriminating against a transgender employee on the basis of her sex and retaliating against her when she complained about the discrimination.

• The complaint alleges that Southeastern discriminated against Tudor when it denied her application because of her gender identity, gender transition and non-conformance with gender stereotypes.

• Lawsuit brought as “joint effort to enhance collaboration between EEOC and the Justice Department’s Civil Rights Division for vigorous enforcement of Title VII.”

Chavez v. Credit Nation Auto Sales

• Jennifer Chavez was employed as an automobile mechanic at Credit Nation Auto Sales.

• Chavez met with her immediate supervisor and the VP informing them of her intention to make a gender transition.

• Chavez claims she began facing adverse treatment about two weeks later from her boss, who reprimanded her for discussing the transition with other employees while at work.

• Credit Nation’s owner expressed “concerns, worries, and apprehensions” regarding Chavez’s gender transition because it will potentially “impact his business,” and further claimed that a new applicant for a tech position declined employment there due to the plaintiff’s transition.

• Chavez was terminated. The reason given by the employer was that Chavez was sleeping on the job.

Chavez v. Credit Nation Auto Sales (continued)

• District Court: dismissed the case ruling that Chavez failed to show her termination was a pretext for unlawful discrimination.

• Eleventh Circuit: reversed, finding that there was enough evidence to go to trial on whether the employer’s bias against transgender individuals was a motivating factor. Even if other factors motivated her termination, she still had sufficient evidence to make a case that the decision to terminate was also motivated by discriminatory animus.

Significance of Chavez

• The 11th Circuit recognized that discrimination against transgender individuals is a cognizable claim as sex discrimination under Title VII.

• Even if an employee commits a clear policy violation, that does not insulate employer from a potential discrimination claim.

• If an employer has engaged in conduct that demonstrates a discriminatory animus, an employee can still claim that this animus was one of the reasons for an adverse action taken against him or her (“mixed motive”).

What Does It All Mean?

• The law around transgender issues is emerging.

• Employers are advised to review their policies and educate managers on this emerging issue.

Possible Violations

• Failing to use a person’s preferred name or pronoun

• Failing to revise records pursuant to changes in gender identity

• Refusing to allow use of single-sex facilities or programs consistent with gender

• Sex stereotyping

• Imposing gender-based uniforms or grooming standards

• Providing employee benefits based on gender

• Gender based accommodations

• Discriminatory harassment motivated by actual or perceived gender identity

• Retaliation

Strategies

• Policy Review

• Equal Opportunity, Non-Discrimination, Harassment and Retaliation Policies

• Dress Code and Appearance Standard Policies

• Codes of Conduct

• Policies Regulating Gender Segregated Areas (Bathrooms, Dressing and Locker Rooms, Etc.)

• Benefits and Leave Policies

• Recommendations

• Include the term “gender identity”• Alternative is to define “sex” and/or “gender” to include “gender identity”

• Be gender neutral where possible

Guidelines

• An organization that includes gender identity in its nondiscrimination policy should be prepared to manage a transition

• Who in the business is charged with helping a transitioning employee manage his/her workplace transition

• What a transitioning employee can expect from management

• What management's expectations are for staff, transitioning employees, and any existing LGBT employee group in facilitating a successful workplace transition

• What the general procedure is for implementing transition-related workplace changes, such as adjusting personnel and administrative records, as well as a communication plan for coworkers and clients

• Answers to frequently asked questions about dress codes and restroom use

Managing Transitions

• Guidelines should be made accessible for employees, supervisors and human resources professionals as needed. Share via:

• Intranet –• HR resources section

• LGBT employee group section

• Link to/from other applicable sections such as employment non-discrimination/ equal employment opportunity policy, dress code, restroom, locker room (if related resources are already provided)

• Search engine keywords to target: transition guidelines, gender identity, gender expression, transgender, transsexual, cross dress, gender reassignment, sex reassignment, sex change*, transgendered* (* these are not preferred terminology, but are intended to capture potential searches)

• Employee Assistance Program resources (e.g., make available to EAP representatives)

• Human Resources hotline resources

Making the Leap

• Initial employee meeting• A time to talk to the employee about what he or she and the organization

should expect through the transition process

• Initial management meeting • A separate meeting with the person’s supervisor to give the supervisor

information about the process and to review the company’s policy and procedures

• Joint meeting with employee and supervisor • To go over the transition plan and address any questions or concerns

• Inform co-workers • Employees who will have regular contact with the transitioning employee

need at least basic information about the individual’s plans, along with a reminder about company policy, expected behavior and how to deal with any concerns they might have. It is advised that the transitioning employee not attend this session so that employees feel more comfortable asking questions.

What to Cover

• Changing the person’s name and photo on company documents

• Coverage under employer health and other benefits plans

• Communication (and timing of those communications) to the organization

• Security clearances

• Restroom and dressing room use

• Appearance rules

• Dress code rules

• Expectations about employee conduct and how to handle difficult conversations and potential conflict

• Manager and employee training if needed

• Client and customer notification and communications

When

• Establish Timeframes

• When will employee start to present at work

• Could be next week

• Could be next year

• When will management and supervisors be told

• When will employees be told

• When will email be changed

• When will external stakeholders be informed

• Who will inform

Management’s Role

• Senior Management• Send a strong message of support for the transitioning employee

• Set the tone for what is expected of staff

• Consider assigning a senior executive as a sponsor of the transitioning employee

• Immediate Management • Needs to be on board in support of all employees

• Listen to employee concerns (may indicate need for training or additional discussions)

• Support for transitioning employee

Ongoing Support

• There will be challenges• Stressful situations

• Outside of workplace

• Inside the workplace

• Medical related issues

• Time away from work

• Privacy

• Manage the performance (of everyone) as needed• Be consistent

• Be fair

• Check yourself

• Be alert for bias

Other Considerations

• Medical Insurance

• Exclusions for all services related to transition

• Federal contractors

• Public Exchanges

• Recruitment/hiring practices

• Name history

• Reference checks

• Educational history

• Interviews

• Employee Travel

• Personal Safety

• Inform all employees of potential safety issues regardless of known or suspected orientation or identity issues

Questions?

• Resources• Victoria Nolan – nolanv@cleanwaterservices.org

• Liani Reeves – lreeves@bullardlaw.com

• EEOC -http://www.eeoc.gov/eeoc/newsroom/wysk/enforcement_protections_lgbt_workers.cfm

• Transgender Law Center – http://transgenderlawcenter.org/

• Human Rights Campaign - http://www.hrc.org

• Society for Human Resource Management -http://www.shrm.org/templatestools/toolkits/pages/managinggendertransitionintheworkplace.aspx