Employers refashioning policies about gender identity as transgender employee issues enter the workplace

Attorney offers tips to avoid potential discrimination issues

The public is becoming more aware of transgender issues because of TV shows based on transgender characters and, certainly, as a result of the media coverage of Caitlyn Jenner’s coming out as a transgender woman. Recent court decisions make clear that employers likewise need to become more educated about legal obligations to transgender employees, says Susan Koval, a partner at Detroit-based management side labor and employment law firm, Nemeth Law, P.C.

“Currently, neither Michigan laws nor federal laws expressly prohibit discrimination based on transgender status,” Koval said. “However, state and federal laws do ban sex discrimination and that includes treating employees differently for failing to conform to sexual stereotypes.”

As far back as the 1989 case of Price Waterhouse v. Hopkins, where a female partner candidate was deemed by her employer to be lacking in feminine traits, the Supreme Court made clear in the context of federal law that discrimination because of “sex” includes gender discrimination. Recently, the U.S. Attorney General issued a memorandum interpreting federal law to also ban discrimination because an employee’s gender identification is as a member of a particular sex, or because the employee is transitioning, or has transitioned, to another sex. A case is presently pending in federal court in Detroit where it is alleged that a male funeral home director was fired after he told his employer that he was transitioning to a woman and intended to dress as a woman at work. This case will likely provide significant guidance to Michigan employers.

Because “gender” is gradually being redefined to no longer refer to a person’s sex, but also to a person’s gender identity, self-image, appearance, behavior or expression, there are steps an employer should consider to minimize the potential for discrimination claims:

1. Amend nondiscrimination and anti-harassment policies to include gender identity and conformity with gender-based preference, expectations or stereotypes.
2. Establish gender transition protocols by identifying clear expectations for management and the transitioning employee and procedures for adjusting personnel records.
3. Educate and train the workforce about transgender issues and company policies.
4. Update restroom and locker room access policies; ensure employees have access to restrooms in accordance with their gender identity and, if possible, add a gender-neutral option or a single occupant facility.
5. Use preferred names and pronouns for transgender employees; update internal and external personnel directories, email addresses, business cards, social media profiles, etc.
6. Consider changing gender-based dress codes because employers should not force transgender employees to dress and present according to birth sex rather than in accordance with gender identity.

“With public discussion on transgender individuals broadening, and courts increasingly finding protection under state and federal laws for gender identity and transgender employees, employers must adapt their workplace accordingly,” Koval said.

About Nemeth Law, P.C.

Nemeth Law specializes in arbitration, mediation, workplace investigations, employment litigation, traditional labor law and management consultation/training for private and public sector employers. It is the largest woman-owned law firm in Michigan to exclusively represent management in the prevention, resolution and litigation of labor and employment disputes.