It's 2017, and U.S. courts are still in the process of refining workplace protections for transgender employees.
The tangled web of regulations at the local, state and federal levels can be confounding for employers of any size. This doesn't change the fact that the process of an employee transitioning from one gender to another is a sensitive issue that requires support on multiple levels, including direct managers, and yes, HR departments.
In order to help our readers support transgender workers both legally and ethically, I spoke with Eric B. Meyer, partner at Dilworth Paxson LLP and creator of the popular Employer Handbook blog. Our conversation has been lightly edited for length and clarity.
HR Dive: What kind of preparation does it require on the part of the employer for this type of situation?
Eric B. Meyer: I think it starts with the simple five-word question: How can we help you? You start by asking that question, following up with other questions. You should be patient and sensitive to the situation; this is something that more likely than not will be relatively new to the employer, especially smaller employers and less savvy employers.
Larger employers may have established protocols for this or at least a framework in place. But for smaller ones it's going to take a lot more patience. It's going to take some studying.
Do some independent research: Google is not so bad. Using HR websites like SHRM can help. But mostly, I think talking to the employee, finding out how you can help them and getting them what they need is a good place to start.
HR Dive: Middle managers, those who have the most interaction with employees on a day-to-day basis, have a really big role in establishing what an organization's culture is. When it comes to creating a culture in which transgender employees feel comfortable, what kind of initiatives can help to create such a culture?
Meyer: I think there are a couple things, with communication being a foundational piece. One is policy and making sure that employees and managers know that this is something that comes up in the workplace — that they'll need to address that request. When someone's transitioning, they need to be supported and helped.
But it's also making sure that these front line managers are prepared not just to help the person who's going through the transition, but to do so in a sensitive way while respecting the wishes of the person going through the transition.
"This is not a situation where you want to try to plod along and do it on your own. Get educated."
Eric B. Meyer
Partner, Dilworth Paxson LLP
At the same time, they need to ensure that steps are being taken to make sure that business needs are met. That means talking to other employees and educating them on what this means for the workplace, what this means for the individual, what it means to work with the individual, pronouns, something as simple as that: How is this person going to be addressed in conversation and in email?
Does the fact that someone is transitioning from male to female or female to male affect their ability to do the day-to-day? No, and maybe that's taken for granted by some people. If they're in a customer-facing position how is this going to impact that? It shouldn't. But at the same time, co-workers need to be aware of what the company's position is and expectations are. That comes from communication, training and policy for more sophisticated companies.
HR Dive: To what extent can employers involve the personal experience of transgender employees? Do you think it would be effective for employers to include employees who have gone through the process?
Meyer: I do. And I have a similar example.
Intel has a reverse mentor program, so they have the younger employees mentor the older employees about some of the needs, wants and desires of less-experienced and younger folks in the workplace. And frankly, it's not just with an eye towards how they can be successful within the company.
It's also for some of the older employees who are getting closer to retirement age who want to move on and possibly look for a second career. They're learning from younger folks and others who are maybe new to the job, looking in the job market to find out what may be out there, what's suitable for them. There's value to that.
Coming back to this example, having someone who truly has gone through the transition can talk first-hand about what they're feeling, what it's like to interact with others having transitioned from male to female, or female to male, I think there's great value to that. Who better to provide that information than the person who's going through that transition?
HR Dive: What is the legal forecast around LGBT workplace issues going forward, especially considering the outcome of Hively v. Ivy Tech and other court rulings around LGBT rights at work?
Meyer: I don't think Hively is going to the Supreme Court, frankly. I don't think that Hively itself will be the case that goes to the Supreme Court. If you listen to the oral argument [in Hively], the employer floundered. I think it was a tough position they had to defend. I don't think it's something where they wanted to plant a flag in the hill and defend it.
I think you're more likely to see Christianson in the 2nd Circuit or this 11th Circuit case [Evans vs. Georgia Regional Hospital, go to the Supreme Court]. Both of those cases were decided in favor of the employer. But basically both circuit courts held that Title VII does not cover sexual orientation. Those decisions came from three-judge panels. I think the 11th Circuit has agreed to hear the case en banc. I think the 2nd Circuit has granted en banc review.
So you have two cases that, if one goes the way of the employer, or both go the way of the employer, those would be the ones that get appealed to the Supreme Court. If the employee loses, then you'll have an appeal because you'll have a circuit split, and it will be the employee trying to convince the Supreme Court that Title VII does cover sexual orientation. I don't think you'll have an employer go all the way up to fight that Title VII shouldn't cover sexual orientation — that's an unpopular position to take.
If you see which way this is trending, we see what the Supreme Court is probably going to do at some points. We see what states, cities are doing and maybe what Congress will do at some point. That is to say that sexual orientation discrimination is unlawful. So what side of history do you want to be on?
HR Dive: What other legislation should employers keep in mind for compliance?
Meyer: Title IX, absolutely. You also have what's going on at the state and local level. For example, I predominately practice in PA, NJ and Washington, D.C. So D.C. bans discrimination based on sexual orientation, based on gender identity — same thing for NJ and Philadelphia.
Not so much in PA. There is no specific law in PA that prevents that discrimination based on sexual orientation or gender identity (although, presumably, someone could make the argument that the Human Relations Act does this).
But that's the trend, that cities and states are passing laws that forbid this and on the national level. Congress had a pretty good run with the Employment Non-Discrimination Act, but it never made it to the president's desk. Now it's the Equality Act.
The Employment Non-Discrimination Act would have been this standalone law. The Equality Act would amend Title VII. Would it make it to Donald Trump's desk? Not the way the house is currently comprised. Would Trump sign it? I don't know, but that's what's going on.
HR Dive: In the face of local laws that affect transgender employees' lives at work and in public, like the North Carolina 'Bathroom Bill,' how should employers respond? Which stance is the right one to take?
Meyer: It's about establishing culture. Going back to my previous point, what side of history do you want to be on? If the government around you is saying we're going to have bathroom bills and tolerate discrimination against the transgender community, you don't have to go that way.
Most Fortune 500 companies have had, for a long time now, rules in their handbooks banning sexual orientation discrimination, banning discrimination based on gender identity. That's the inclusive culture that they want to promote. I think smaller companies, younger companies, with younger employees especially want to have a culture of inclusion (not that older employees don't).
I think we didn't see an initiative like this 20 years ago or 30 years ago. I think it's more commonplace to have this initiative now, and I think it's a bottom-up approach of educating people who grew up in a time where discriminatory behavior was tolerated — this mentality was tolerated. I think changing minds starts from the younger generation. But you can establish your own culture; you can set your own rules.
HR: How do employers and HR departments ensure that transgender employees feel safe in the workplace and that they can focus on work knowing the pressures (i.e. bullying, harassment) they sometimes face?
Meyer: With patience. We have these established policies and protocols but every once in a while there are these new issues that pop up that at the time we worry about, fret about, like accommodating an employees' disability with a new chair. Someone has a bad back and needs a new chair. Then a non-disabled employee goes, "Well how come I can't get a new chair?" Because you don't need a new chair. This person needs a new chair to perform the essential functions of the job.
You explain to them the duty to accommodate, and that we're going to comply with the law. We're going to have an inclusive workplace where we look out for and help folks that need that a little bit of extra help, whether they're disabled or otherwise.
This is still a relatively new issue and people just aren't used to it yet. It's foreign to them. So working with them, explaining to them — it's the same person! He now identifies as female. She now identifies as male. It's new; yes, there's a learning curve. Yes, we don't expect you to get the pronouns right every time. Yes, you may mess up. But there are people who, honest mistake, mess up and call Caitlyn Jenner, Bruce Jenner. They don't do it maliciously, it just happens. People knew Caitlyn as Bruce Jenner for how many years?
We're not expecting you to be perfect, and I think that's part of the obstacle here. I've had these conversations with people in the workplace. People want to do the right thing, but sometimes they don't know what to say. They're afraid to be either politically incorrect or accidentally incorrect. I think people going through this transition understand that there's a learning curve. It's just preaching patience, educating people and allowing time to be your aid.
HR Dive: Any other last pieces of advice?
Meyer: One other takeaway would be: don't be afraid to get help or ask questions, whether it's a lawyer or other HR professionals. Do research online, find some other resources, wherever you can find assistance.
