Amid the chaos that was 2017, transgender issues seemed to fall below the radar for a while; or Twitter, whatever-it’s all a blur. However, despite the fact that there is a seemingly constant stream of other distractions for employers and Americans in general to worry about-nuclear annihilation, climate change, who has better hair–Kim Jong-Un or Donald Trump?-we still need to be cognizant of transgender issues in the workplace.
If asked to summarize transgender issues regarding discrimination and harassment at the federal level in a word, my word of choice would be “confusing.” The EEOC has issued guidance which clearly and unequivocally states that any discrimination related to gender identity or harassment related to gender identity or transition constitutes unlawful discrimination. If this were a play, that would be Act I. Act I would be followed by a crash of thunder, maybe some lightning, and then the entry of U.S. Attorney General Jeff Sessions (When I see him, I always think of Rick Moranis in that Darth Vader outfit in the movie Spaceballs...sorry Rick.). Anyway, AG Sessions has authored a memorandum wherein he points out that the Justice Department will “take the position that Title VII’s sex discrimination prohibitions don’t protect employees on the basis of gender identity”. So to clarify, from the top lawyer in the country, "you are what you are and we don’t really care what you think you are". Simple enough.
However, if you look at the EEOC’s website, the guidance has not changed despite AG Sessions’ memo. The same holds true for OSHA’s website regarding bathroom access for transgender employees. So if you want to be in compliance with federal law on the issue of transgender discrimination and harassment, two words: "Good Luck".
From my perspective, the safe bet is to continue to follow the EEOC’s guidance as well as OSHA’s guidance. I say that for two reasons. First, it just seems like the right thing to do. I’m not a doctor or a psychiatrist, and I’m certainly not very liberal but I find it hard to believe that it’s easy being a transgender person. Second, Illinois is one of a growing number of states that have anti-discrimination laws that protect transgender people. So even if the federal government says that it is okay to discriminate against transgender people, the State of Illinois does not approve.
So for 2018, I think the best advice for employers is to treat your transgender employees the same way that you would want them to treat you if the roles were reversed. And finally, I would be remiss if I failed to point out the irony in the fact that the federal government seems to be unable to resolve its own identity crisis on the issue of…identity.
Welcome to 2018. May the Force be With You...you’re going to need it.