Last June, Congressman Barney Frank (D-MA) of the Education and Labor Committee reintroduced the Employment Non-Discrimination Act (ENDA, HR 3017) in the House and a companion bill (S 1584) has been introduced in the Senate. Senate hearings were held in November and some activists believe that the bills are likely to come up for a vote this year. ENDA would extend Civil Rights Act-Title VII-style rights to gay, lesbian and transgender employees. Besides this potential federal legislation, there are numerous state and local laws respecting transgender employees. As well, plaintiffs have succeeded in winning cases. Thus, management of transgender employees is important for legal as well as diversity reasons. A few basic steps, such as policy revisions and training, can create a positive atmosphere and avoid legal hassles. Some of the most sensitive HR challenges concern employees who begin working before an operation and then make a transition while still employed.

Not all firms handle transgender employees well. Workplace Fairness, a not-for-profit employee rights advocacy organization, notes that transgender employees often face discrimination. Many are fired; live in fear of being revealed; are disciplined for failing to adhere to dress codes; and are harassed.

Gender Stereotyping Cases

As a result, the federal courts have been recognizing transgender-related causes of action under Title VII of the Civil Rights Act, which prohibits sex discrimination. Case law concerning transgender employees has in part evolved from a sex discrimination case that did not concern a transgender employee. An ambitious PricewaterhouseCooper (PwC) consultant named Ann Hopkins was being considered for partner in the early 1980s, a time when only about one percent of PwC’s partners were female. Writing in the Hofstra Labor and Employment Law Journal years after the events, Hopkins describes her case. A manager suggested to her that she “walk more femininely, talk more femininely, dress more femininely, wear makeup and jewelry (and) have (her) hair styled” if she planned on making partner. When she was rejected, Hopkins and her attorneys argued that PwC had discriminated against her because of gender stereotyping. The case went through several complicated appeals steps, reaching the U.S. Supreme Court at one point. Ultimately, it was decided in Hopkins’s favor. The concept of gender stereotyping is one of the foundations of the Title VII cases that have been brought by transgender employees.

Last fall Eric Matusewitch wrote an article about the evolution of the law concerning transgender employees in HRNow, the magazine of the New York State Society for Human Resource Management. The American Psychiatric Association classifies trans-sexualism as a mental disorder. Causes of action might proceed under the Americans with Disabilities Act as well as Title VII. Matusewitch notes that in 2004 the Sixth Circuit Court of Appeals held that Title VII protected a fire department lieutenant who revealed that he was a transsexual. In Rentos v. OCE Office Systems, a federal court allowed a complaint of sex discrimination under New York State Human Rights Law. In Florida, Madalynn A. Shepley won a complaint with the Commission on Human Relations concerning unjust dismissal for gender and disability following a male to female transition.

State Laws

The Transgender Law Institute lists over 100 cities that have passed laws barring transgender discrimination. Also, 13 states have laws barring discrimination concerning sexual orientation and gender identity and expression. These include Minnesota, Rhode Island, New Mexico, California, Illinois, Maine, Hawaii, New Jersey, Washington, Oregon, Vermont, Colorado and Washington DC. In addition there are bills before 20 state legislatures. Hence, even if ENDA does not pass, state law as well as Civil Rights litigation make this an issue of serious human resource management concern.

Company Policies and Procedures

Many leading firms have adopted progressive policies concerning transgender employees for ethical and diversity reasons rather than because of legal concerns. The Transgender Law Institute finds 305 firms that have met its optimal equality standard. Shannon Minter, co-founder of the Institute, says that it is easy to accommodate transgender employees. Many companies have adopted good policies so that what works is well understood. Minter says that the key issue is strong management leadership. If top management demonstrates a high degree of support and tolerance when an employee is transitioning on the job, people get used to the change. Without strong leadership, people get confused, Minter says.

Minter recommends that an accountant or other employee going through a transition ought to sit down with human resource and line management to discuss timing. The employee and the firm must agree to a point after which people understand that the accountant has changed gender. Often there is a name change. Pronouns, dress codes and bathroom access all change at that agreed-upon point. Minter notes that some co-workers might have emotional trouble with changing bathroom access issue but that with good leadership acceptance is generally swift.

Jillian Weiss is an associate professor of law and social policy at Ramapo College in New Jersey. Weiss does research on transgender issues and has written a book titled Transgender Workplace Diversity: Policy Tools, Training Issues and Communication Strategies for HR and Legal Professionals. Weiss also has considerable experience providing training programs to firms and academic institutions and has been a consultant to several accounting firms. Weiss says that firms should have a policy that includes the term gender identity in the employment policy manual or employee handbook. The policy should include guidelines as to appropriate and inappropriate questions that employees might ask a transitioning co-worker. The policy manual should include detailed guidelines as to how managers, including human resource managers, ought to handle issues like name changes, health care benefits and bathroom facility usage.

Weiss recommends three levels of training. With the exception of employee orientations, training is generally given when a specific issue arises. The first level of training for senior managers should take one hour and should give them an overview as to what is involved when an employee transitions. The second level is for HR managers and should be detailed, involving about eight hours. The second level would go over the steps necessary to prevent discrimination, how to revise benefits, revise policies and provide a smooth transition. The third level would be for co-workers. This would be one hour or less, but would be divided into two kinds. The first kind would be included in the company orientation and would include just a sentence or two that the firm does not discriminate with respect to gender identity and expression and transgender employees. The second kind would be given, as would the first and second levels, should an employee actually be going through a transition. Weiss recommends that policies be as specific as possible and contemplate specific details in advance.

Conclusion

Transgender transitions and employees with non-conformist gender identity issues may make some employees uncomfortable. But with top management modeling appropriate behaviors, communication, appropriate policies and training HR policies can be a valuable asset. Firms and institutions like Harvard University, American Airlines, Apple and IBM have shown that enlightened policies are easy to execute.

Mitchell Langbert, PhD, is an Associate Professor, Brooklyn College. Widely published on the subject of human resource management, Langbert has consulted and served as an expert witness.