Wednesday, November 11, 2015

Transgender Discrimination and Dress Codes

How many of you have a dress code that includes statements something like this:

Men must wear trousers and have a suit coat and tie on hand;

Women must wear slacks, skirts or dresses. 

Now, what if an employee on your staff is transgender, meaning in this case those individuals who have not surgically transitioned to the opposite gender of their birth, but identify with that opposite gender? Does the employee who was born   male but identifies as a female have to wear trousers and have a suit coat and tie available? Similarly, does a female who identifies as a male have to wear slacks, skirts or dresses when he really feels it’s more appropriate to his gender identity to wear trousers and a coat and tie? By requiring employees to dress consistent with their birth gender, even if they identify with the opposite gender, is an employer discriminating against that worker?

The EEOC ruled in the Macy case that discrimination based on gender identity violated Title VII of the Civil Rights Act. Since that time, a number of states have adopted or expanded anti-discrimination laws to protect LGBTQ individuals. Illinois is one such state to expand its Human Rights Act to prohibit discrimination based on sexual orientation, which the Act defines as including gender identity.

Of course employers should provide a workplace free of discrimination, including for transgender workers. A good place to start with that awareness is with the dress code policy. Instead of separately listing or identifying acceptable and unacceptable apparel for men and women, identify the clothing without reference to gender. Trousers, coat and tie, slacks, skirts and dresses are all acceptable office attire. Period. If an employer is worried that Bob the office clown, who identifies as a male, is going to show up in a dress and heels ala the character Klinger in the old M*A*S*H television series as a joke, the employer can add a provision that employees should dress in accordance with their gender identity consistent with the policy.

Acknowledging transgender rights in the workplace and providing a discrimination free environment for all, regardless of sexual orientation of gender identity is still a fledgling initiative for many employers. Policies and practices should be reviewed and created in some instances. The dress code policy should be included in that review.