The EEOC takes the position that discrimination based on gender identity is gender discrimination under Title VII. The Illinois Human Rights Act prohibits discrimination based on gender identity. Given that these existing laws are incorporated into almost every employee handbook, is it really necessary to create special policies to address workplace protections for transgender employees? Maybe.
First of all, it is important to establish a policy for transitioning workers if your workplace is currently without one. A comprehensive policy which sets forth the workplace requirements and rights of a worker who is transitioning not only avoids confusion, but evidences the employer’s commitment to a non-discriminatory workplace and respects the transitioning worker’s needs. Think of it like the routine practice of including sexual harassment policies in handbooks. Yes, sexual harassment is prohibited as part of Title VII and IHRA protections against gender discrimination, but a big learning curve existed in many workplaces regarding the definition of sexual harassment, how to spot it and how to stop it. The same holds true for ensuring discrimination based on gender identity.
Aside from addressing the topic of transitioning workers, a policy should also contain a general prohibition of discrimination with examples of particular protections. One example of this, as we wrote about yesterday here, is to ensure that workers are called by the name of their choosing. While payroll records might reflect the employee’s legal name, the employer recognizes the employee’s right to use a preferred name and pronouns. S policy should also include a mechanism whereby issues or concerns about gender identity are addressed (a way for any employee to discuss gender identity matters). Additionally, it may be necessary to revise other policies, such as dress code policies to ensure they are not inadvertently discriminatory. Separate policies may be necessary on the rights of transgender patrons.
As important is the need to train employees on these issues. It is one thing to acknowledge the rights and protections of transgender workers and patrons, it may be another matter to live it. The topics, phrases and identifiers are so new to many employees that they are unsure how to incorporate them into their work behavior. Think of it like when many workers had to learn that sexist jokes had no place in the work environment. The same holds true on the topic of transgender workers.
Although best practices are rapidly evolving on rights and protections of transgender individuals, employers should not wait for definitive court rulings. Act now to stay on top of this topic and avoid being the “test case” in your jurisdiction!
