Presented by Jodi Slavik, March 31, 2017

Walking the Transgender Tightrope: Balancing Culture and Compliance in the Modern Workplace

How HR May React:

What We’re Going to Cover

• Culture Considerations

• Legal Requirements

• Creating Compliant Practices

• Responding to a Transition

• Stopping Harassment in its Tracks

Culture Considerations

“It's a difficult place to live, being neither/nor in an either/or world.”

Kate Bornstein, Huffington Post (7/30/07)

The Starting Point: Know Your Definitions

• Transgender: Umbrella term for individuals whose gender identity and/or gender expression is different than their assigned gender at birth.

• Gender identity: A person’s internal, deeply-felt sense of being male, female, or in-between. Different from “sex” as biological status.

• Gender expression: How a person communicates gender identity through dress, speech, hairstyle, voice, or mannerisms.

• Gender non-conforming: Individuals that are perceived to have gender characteristics or behaviors that do not match traditional, societal expectations.

More Definitions

• Gender dysphoria: Diagnosis recognized by the American Psychiatric Association in which severe distress is caused by the conflict between gender identity and assigned sex.

• Transitioning: The process of changing genders from assigned gender to match gender identity. This may include changes in dress, name, hormonal therapy, and surgery.

• FTM: Female-to-Male or transgender man

• MTF: Male-to-Female or transgender woman

• Non-binary: Gender identity that is not exclusively masculine or feminine.

The No-No Words:

• Transsexual: Medical term for individuals who emotionally and psychologically feel they belong to the opposite sex and often seek medical treatment to change external sexual characteristics. Avoid using the term.

• Genderqueer: Umbrella term used by some individuals who do not identify as exclusively male or female and/or oppose mainstream gender conventions. Related to non-binary, gender fluid, and third gender. Avoid using the term.

How Many Transgender Individuals are in the US?

• 2016 UCLA Williams Institute Study estimates 1.4 million adult Americans consider themselves transgender.

– Alaska .49%

– Oregon .65%

– Washington .62%

• 18 – 24 year age group most likely to identify as transgender

Is Your Culture Keeping Up?

“Seven in ten (70%) Americans favor laws that would protect gay, lesbian, bisexual and transgender people against discrimination in jobs, public accommodations and housing.”

Public Religion Research Institute, 3/10/17

And What Does the Future Workforce Think?

• A national survey of 1,000 18-to-34-year-old millennials showed that fully half believe gender exists on a spectrum, rather than the strict male-female binary. Report to Fusion.Net, January 2015 Survey of Millenials

The Importance of Diversity

“We couldn’t have gone through all of the mergers and acquisitions and continue to be successful without having a diverse workforce. It’s important to our business strategy and it makes us more innovative and competitive.”

–Debbie Storey, Senior Vice President of Talent Development and Chief Diversity Officer, AT&T

Guess Where Many Successful Transitions Happen?

Still Worried How Your Company Will React?

1. Know the written and unwritten values.

2. Are they still relevant and aligned?

3. If shift needed, consult change expert.

4. If on track, make real on individual level and hold everyone accountable.

Legal Requirements

Title VII of the Civil Rights Act of 1964

No discrimination, but no specific prohibition against discrimination based on gender

identification or sexual orientation

But the EEOC has an opinion!

Macy v. Holder (2012)

Tamara Lusardi, Complainant v. John M. McHugh, Secretary, Dep’t of the Army (2015)

Gender Stereotyping a No-No

• Price Waterhouse v. Hopkins, 490 U.S. 228 (1989)

• Schwenck v. Hartford, 204 F.3d 1187, 1201-02 (9th Cir. 2000)

• Glenn v. Brumby, 663 F.3d 1312 (11th Cir. 2011)

• EEOC v. R.G. & G.R. Harris Funeral Homes, Inc., 100 F. Supp. 3d 594, (E.D. Mich., 2015)

• EEOC v. Deluxe Financial Services Corp., (D. Minn. Civ. No. 0:15-cv-02646-ADM-SER, filed June 4, 2014, settled Jan. 20, 2016)

• Winstead v. Lafayette Cty. Bd. of Cty. Comm'rs, __ F. Supp. 3d ___, 2016 WL 3440601 (N.D. Fla. June 20, 2016).

Federal Agencies are On Board

What are States Doing?

http://www.lgbtmap.org/equality-maps/non_discrimination_laws

Washington

• 2006: NO discrimination on basis of sexual orientation, gender identity or expression

• December 2015: HRC regulations

– Prohibits discrimination on basis of gender identity, gender expression, or sexual orientation

– Prohibits pre-employment inquiries about gender, gender identity, etc.

– Requires employers & other facilities to allow individuals to use the sex-specific bathroom or locker room matching their gender identity

Creating Compliant Practices

The Buckets

Hiring

Internal records &

documents Current policies

& practices

Restrooms & Locker Rooms

Harassment & Diversity Training

Hiring

Hiring

• Applications

– Are you asking for gender on your application?

– What do you do if someone leaves it blank?

• Interview questions

– “Are you transgender?”

– “Would you have a problem working with other men?”

– “Are you going to have medical procedures?”

– “What’s with your name?”

• Internet searches

– Is this info based on a protected status?

Background Checks – Tips for the HR Manager

• If background check raises name indicating different gender, you may ask “Were you known by a different name in the past?” AND “What name should be used in checking references?”

• Treat the candidate exactly as any other candidate whose name has changed would be treated.

Challenges of Changing I.D.

“Only one-fifth (21%) of transgender people who have transitioned…have been able to update all of their IDs and records with their new gender and one-third (33%) had updated none of their IDs or records.” (National Transgender Discrimination Survey, 2012)

Driver’s licenses

Social Security records

Birth certificates

Courts Recognizing Non-Binary

Internal Records & Documents

When is Legal Name Change Required?

• Payroll, retirement, tax forms, benefits, workers’ compensation.

– Name on W-2 should match name on SS Card.

• Change these records when legal name change complete.

– Note referencing commonly used name/nickname can be placed with payroll records

• Keep transition name/gender information in separate confidential file

– If in doubt, leave it out!

When is Preferred Name Change Okay?

ID badge (name & photo), caller ID, door/desk/cubicle name tags, time sheets, email address, website bio,

business cards, directories, mailing lists, organization charts

When Will You Use Both Names?

• Electronic time & attendance

• Employee benefits

• Pension, life & disability benefits

• Signatory authority for contracts

How Should Your Employee Change Name & Gender?

National Center for Transgender Equality, ID Documents Center

http://www.transequality.org/documents

Do I Need to Update I-9s?

• No need to update I-9 unless legal name change, rehire, or required to reverify – Record new legal name in Sec. 3 of Form I-9

– Can add note to I-9 to explain discrepancy in case of audit

• USCIS has changed “Other names used” on I-9 Form to “Other Last Names Used” – New EEs may leave blank or enter “N/A”

Review Current Policies and Practices

Policies & Practices

• How many gender references in your handbook?

• Policies to review:

– Acknowledgement of receipt

– EEO

– Harassment

– Code of Conduct

– Dress & Grooming

– Health Insurance

– Medical Leave & Accommodation

Dress & Grooming

• Permit employees to dress consistent with gender ID while complying with your dress & grooming standards.

• Make sure the standards are reasonable, gender neutral, and serve legitimate public purpose (e.g., safety, convey public image).

Health Insurance

Medical Leave & Accommodation

• ADA excludes “gender identity disorders [GID] not resulting from physical impairments”….but…. – Medical community considers GID or Gender Dysphoria as

a condition resulting from physical impairment arising from genetics and/or hormonal imbalance while a fetus.

– DOJ has issued statement supporting ADA inclusion

• Surgery and recovery from surgery may be considered to be temporary disabilities under WLAD. – Consider any request for a reasonable accommodation due

to a medical procedure (e.g., time off) the same as any other employee with a medical condition.

Medical Leave & Accommodation, cont.

• Therapist visits, doctor’s office visits, electrolysis, laser hair removal, and hormone therapy could create a leave request. – Allow an employee to use sick leave, vacation leave, and

shared leave how others are allowed to use.

• FMLA allows leave for “serious health condition” – Plastic surgery doesn’t fly, but what about gender

reassignment?

– If your EE has Gender Dysphoria and is undergoing treatment, err on side of allowance

– Intermittent leave if “medically necessary”

Restrooms & Locker Rooms!

Do You Have Gender Neutral Facilities Ready?

• Best Practices: A Guide to Restroom Access for Transgender Workers, OSHA (2015) – Gender specific bathrooms: May use bathroom consistent

with gender ID

– Single occupancy bathrooms: May be gender neutral but can’t force transgender individual to use

– EE should determine most appropriate & safest option

• Washington State Human Rights Commission Guide to Sexual Orientation and Gender Identity and the Washington State Law Against Discrimination (2014)

Restroom Cases

• Cruzan v. Special School Dist #1 (8th Circ., June 2002)

• Tamara Lusardi, Complainant v. John M. McHugh, Secretary, Dep’t of the Army (2015)

– Cannot deny pre-op transgender employee access to the bathroom.

– Even if employees are upset…

“confusion or anxiety cannot justify discriminatory terms and conditions of employment.”

State Bathroom Battles

What to Do Now

• Accept use by gender identity

• Gender neutral, single use if possible

• If no gender neutral, enhance privacy features (cover gaps and extend doors/walls)

• Create private changing areas in locker rooms with stalls or curtains

• One private, single stall shower if possible

• Work with employees NOW to brainstorm options

Harassment & Diversity Training

Harassment Training Must-Haves

• What is Equal Protection?

• Types of harassment-hostile, sex, retaliation

• How and when to report

• For supervisors—liability, responsibility, accountability

• CULTURE

The Purpose of Diversity Training

Diversity Training Doesn’t Work, Peter Bregman, Harvard Business Review, March 12, 2012

“When people divide into categories to illustrate the idea of diversity, it reinforces the idea of the categories.”

“Stop training people to be more accepting of diversity. … Instead, train them to do their work with a diverse set of individuals. Not categories of people. People.”

Responding to a Transition

Plan for Transition

• Set up meeting to discuss employee’s needs

• ID person to coordinate successful workplace transition before and after the transition

• Engage outside expert?

• Follow the cardinal rule:

Let the employee drive the process!

Questions for the Transitioning Employee

What name do you prefer?

What gender pronouns do you prefer?

Do you identify as a male or female?

Are there ways I can help make your work environment more supportive?

Are you a real man (or woman)?

What are you?

Have you undergone surgery?

Are you taking hormones?

What’s with your name?

From: Philadelphia Gender Identity Guidelines

Create a Transition Plan

• Whether the employee is to stay in their current job or be relocated

• Time off required for medical treatment, if known

• Expected date for the transition, which includes the change of social gender, personal details, and name

• How the manager, coworkers, and clients will be informed of the change

• What changes will be made to records and systems

• Whether the current policies against discrimination, harassment, and benefits will adequately protect this employee, and if not, how they will be amended

• If there is a dress code, how it will be followed

• The expected plan for use of single sex facilities, such as restrooms, in the new gender

From http://www.tgender.net/taw/policyfaq.html

Respect Privacy

• The employee decides whether and when to transition.

• All information on a need-to-know and only with consent of employee before that time.

Communicating to the Other Employees

• Inform of the change, the workers new name, and the date of the change

• Affirm company policy supporting the transition, and show strong support from the manager/supervisor for the worker

• Effective on the specified date, the employee should be treated in all aspects as a woman (or, if transitioning from female to male, as a man)

• Make a point of using the pronouns appropriate to the new gender, as in "Please welcome her as you would any other woman."

• Depending on the wishes of the transgender worker, it may be appropriate to offer the workers willingness to answer coworkers questions, as in "If you have any questions about her upcoming gender transition, please feel free to ask Ms. Smith."

• It may be appropriate to stress the worker’s skills, experience, and continued ability to do his/her job

• Give transgender worker the choice of whether to be present at the meeting

From http://www.tgender.net/taw/policyfaq.html

Stopping Harassment in its Tracks

How Might Harassment Show Up?

• Intentionally and repeatedly referring to transgender EE by incorrect name and pronoun

• Asking about surgeries or medical procedures

• Avoiding or staring

What to Do

• Get Supervisors/Managers on board

• Check in with employee frequently

• Listen to the buzz

• Follow-up and investigate if necessary

• Open, honest, respectful at all times

• EAP

What’s the Secret Sauce?

1. Commitment to discrimination-free workplace

2. Prepare for emotional transition

3. Use the skills you already have

4. Don’t over-respond

5. Culture of respect

We’re in this together. QUESTIONS?

• Jodi Slavik

• jodis@vigilant.org • (425) 349-4477 • www.vigilant.org