Monday, November 7, 2016

Do You Need a Transgender Rights Policy?

We would love to say that we predicted that the Cubs would win the World Series this year, but we have to be honest that we didn’t. One prediction that we did make in January which has turned out to be true is that transgender rights would be one of the hottest employment topics of the year.

On a national level, the issue of what rights are protected by law for transgender individuals remains uncertain.  Hopefully, the Supreme Court will give guidance when it considers the now well known “bathroom case” emanating from the 4th Circuit which held that Title IX prohibited a Virginia school’s rule that students must use the bathroom consistent with their gender assigned at birth. Certainly the federal courts at all levels will address gender identity rights under Title VII of the Civil Rights Act in the near future as well.

On a state level, it is clear that the Illinois Human Rights Act prohibits discrimination based on gender identity. So, the question is whether employers need to have a separate policy on transgender rights.

The vast majority of employers have EEO policies already in place which prohibit discrimination of employees which either include or could easily include gender identity. Is that enough? Well, it probably provides minimal compliance with the law, but the real question is whether your employees, and especially your managers and supervisors, are knowledgeable in the issues of transgender rights and can implement and enforce those rights confidently.

Because the issues are new to many and because the issues are important both legally and socially, it is wise to have a separate transgender rights policy. In conjunction with training, a comprehensive policy helps to educate employees and serves as a reference and reminder of the rights of all individuals in the workplace. Your policy should contain the following elements:
  1. A general statement that discrimination, including harassment based on transgender status is prohibited;
  2. Definitions of terms commonly and appropriately used when discussing transgender rights and addressing or referring to transgender individuals;
  3. The rights and responsibilities of everyone in the workplace with regard to transgender workers;
  4. A description of transgender individuals’ rights to choose their name (including pronouns), use bathrooms and locker rooms, and dress according to their gender identity;
  5. A complaint process, such as one that may be contained in an employer’s sexual harassment policy.

Even the best policy won’t educate workers and prevent discrimination in the workplace without training.  It’s important for employees to learn about and discuss issues surrounding transgender rights.  Like other protected characteristics, acceptance and the protection against discrimination is increased through not only policy but through education.