Title of Presentation

1. Transgender Issues In The Workplace Title of Presentation Kelly S. Hughes Charlotte Office

2. Introduction

3. LGBT Terminology • Sexual orientation • Gender identity • Gender expression • Transgender • Gender variant, gender diverse, gender non-conforming, gender queer, etc.

4. Federal Transgender Protections • Title VII • Amended Executive Order 11246 • Federal contractors only • OFCCP • Notice of Proposed Rule Making – Sex Guidelines • EEOC/DOJ stances and guidance • No protections: • ADA • ENDA

5. State Law • 19 states plus D.C. • Gender identity or expression = protected class • Covers 40% of LGBT population

6. State Law (cont) • 225 cities and counties • Charlotte’s new ordinance • Repeal efforts afoot • 60% of Fortune 500 companies

7. Employment Discrimination Against Transgender Individuals 50% harassed at work 26% lost a job due to being transgender or gender non-conforming. National Gay and Lesbian Task Force and National Center for Transgender Equality, “Injustice at Every Turn: A Report of the National Transgender Discrimination Survey” (2011)

8. Case Study 1: “Sam to Sally”Transition Planning & Announcement

9. Case Study 1: “Sam to Sally”Transition Planning & Announcement • Long-time employee, Sam • Customer-facing position in family-oriented service establishment

10. Case Study 1(cont): • Begins to wear hair accessories, make-up, and jewelry typically worn by women • Sam tells Store Manager he plans to transition • Executive visits store, notes Sam’s bling and scrunchie, and comments about it to HR

11. Case Study 1: “Sam to Sally”Transition Planning & Announcement • Provide assurance and affirm support/policy • Collaboratively discuss key issues • Name change/pronouns • Document changes • Dress code • Restroom/locker room • Develop action plan • When transition will occur • When and how to inform others • Employee’s needs moving forward, such as leave • Identify support team/resources

12. Case Study 2: “Everybody Goes”Bathroom/Locker Room Usage

13. Case Study 2: “Everybody Goes”Bathroom/Locker Room Usage • Employee is a biological male who works in the shoe department of a department store. • In June 2015, after working for the employer for several years, Employee notifies his supervisor that he plans to transition and present as a female after Christmas 2015.  • Employee demands to immediately begin using the female restroom. He says he shared his plans with a few male coworkers a few weeks prior, and those coworkers have been bullying him ever since. 

14. Case Study 2: “Everybody Goes”Bathroom/Locker Room Usage • Preliminary note about inherent limitations of the current narrative • Binary construct (male and female) versus spectrum • Even best practice now does not account for limitations in language and vastly different experiences of transmen and transwomen

15. Case Study 2 (cont): • Within current narrative • Rule of thumb: Employees should be permitted to use the restroom that reflects their gender identity, regardless of whether it aligns with their biological sex assigned at birth.

16. Case Study 2: “Everybody Goes”Bathroom/Locker Room Usage • OSHA Guidance issued 6/1/15 • “Best Practices: A Guide to Restroom Access for Transgender Workers” • Available at https://www.osha.gov/ newsrelease/trade-20150601.html

17. Case Study 2 (cont): • Use of restroom that corresponds to gender identity • Gender expression? • Anatomical conformance? • Unisex/private

18. Case Study 2: “Everybody Goes”Bathroom/Locker Room Usage Implementation of Current Rule of Thumb: • Employer should have face-to-face communications with the Employee about logistics planning for the transition. • Clearly and explicitly articulate support for the transitioning employee and desire for input on the smooth transition, including timing issues.

19. Case Study 2 (cont): General rule for now (but stay posted): • While the Employee is presenting as a male, the Employee should continue to use the male restroom. • However, when Employee decides she is ready to present as a female, the Employee will be permitted to use the female restroom.

20. Case Study 2: “Everybody Goes”Bathroom/Locker Room Usage WAIT! There’s a second part to this hypothetical! What about the bullying? • The employer should immediately address the separate issue regarding bullying.  • An investigation should be conducted, and policies should be updated/reviewed to ensure discrimination/harassment on the basis of gender expression, gender identity, and sexual orientation are included as being prohibited, etc.  • The situation should be monitored closely. 

21. Case Study 2 (cont): • Prompt remedial action should be taken to correct any identified violations. • Top-down reinforcement of Company’s policies, including dignity and respect for all, is critical.

22. Case Study 3: “Suit and Tie?” Dress Codes and Appearance Standards

23. Case Study 3: “Suit and Tie?” Dress Codes and Appearance Standards • Employee who is transitioning from male to female comes to work at grocery store wearing bright pink nail polish.

24. Case Study 3 (cont): • Company’s handbook states employees may wear clear or neutral colored nail polish only (and prohibits any nail polish whatsoever for employees working in the deli). • Employee’s manager sees employee’s nails and asks employee to remove the pink nail polish.

25. Case Study 3: “Suit and Tie?” DressCodes and Appearance Standards • Employee refuses, citing her desire to wear pink nail polish because she is presenting as a woman. • Can company enforce its handbook policy and require the employee to remove the pink nail polish?

26. Case Study 3 (cont): • Yes. The policy applies to male and female employees and is thus gender-neutral – the Company should, however, allow the employee to wear clear or neutral-colored nail polish.

27. Case Study 4: “Watch Out at the Watercooler” Co-worker Concerns and Comments

28. Case Study 4: “Watch Out at the Watercooler” Co-worker Concerns and Comments • Employer is manufacturing plant in South Georgia. • Employee is female line technician working the third shift.  • Employee, with the full, vocal support of her employer, begins to transition and begins presenting as a male. • Employee begins to use the male restroom.

29. Case Study 4: “Watch Out at the Watercooler” Co-worker Concerns and Comments • One of employee’s male co-workers makes a complaint to Human Resources • Company’s support of the transgender employee is infringing on his (co-worker’s) privacy rights (“I don’t want a lady in my bathroom”). • Co-worker claims he is being discriminated against because of his faith (Christian) because he is not permitted to voice his objections to the transgender “lifestyle” and has to work next to this individual. • What should HR do?

30. Case Study 5: “The Customer Is Always Right?” Customer Interface/Relations

31. Case Study 5: “The Customer Is Always Right?” Customer Interface/Relations • Britney works for Aldo’s, a high-end grocer • FTM transgender, already transitioned • Customer seeks out manager, who goes to HR • Complains about Britney being a safety threat because Britney used the women’s restroom • Customer says she/her church will avoid Aldo’s but also protest on site until Britney is fired • Britney’s car is “keyed” and a co-worker tells her that she should quit so nobody loses their jobs

32. Case Study 5: “The Customer Is Always Right?” Customer Interface/Relations • Preventative and remedial education is key • Management training • Transgender 101 training • Handling of customer complaints • Implicit and explicit support of inclusion • Investigate and discipline in accordance with policies and procedures • Collaborate with employee to fully understand and address concerns • Follow-up often

33. Takeaway • Policies • Include gender identity and gender expression as protected categories • Process • Establish gender transition guidelines • Education and Compliance • Provide information and training

34. Takeaway • Provide assurance and affirm support/policy • Don’t fall prey to stereotypes and fears! • Collaboratively discuss key issues • Restroom/locker room • Name change/pronouns • Document changes • Dress code

35. Takeaway • Develop action plan • When transition will occur • When and how to inform others • Employee’s needs moving forward, such as leave • Identify support team/resources • Documentation • Update personnel records

36. Takeaway • Facilities • Grant restroom access and locker room access according to an employee’s full-time gender presentation • Dress Codes • Make dress codes gender neutral and apply consistently

37. Questions?

38. Transgender Issues In The Workplace Title of Presentation Kelly S. Hughes Charlotte Office