Presented by Kandis Sells

Walking the Transgender Tightrope: Balancing Cultureand Compliance in the Modern Workplace

What is Vigilant?

SPECIALTIES:

• Employment Law

• Employee Relations

• Labor Relations

• Safety

• OD & Training

• WA Workers Comp

How HR May Initially React:

What We’re Going to Cover

Transgender in the Workplace

• Culture Considerations

• Legal Requirements

• Creating Compliant Practices

• Preventing Harassment

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

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 oppose mainstream gender conventions. Can identify as man and woman, neither, gender fluid, third gender, or other. Avoid using the term.

How Many Transgender Individuals are in the US?

• 2011 UCLA Williams Institute Study estimated 700,000 of adult Americans consider themselves transgender.

• US Census Bureau does not collect data on gender identity.

• The number is more likely 5 – 12 million.

Guess Where Many Successful Transitions Happen?

Is Your Culture Keeping Up?

“Approximately 9-in-10 (89%) Americans agree that transgender people deserve the same rights and protections as other Americans.”

Public Religion Research Institute, 11/3/11

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

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 everyoneaccountable.

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)

Significant Court Cases

• 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. Lakeland Eye Clinic, P.A. (M.D. Fla. Civ. No. 8:14-cv-2421-T35 AEP filed Sept. 25, 2014, settled April 9, 2015)

• EEOC v. Deluxe Financial Services Corp., (D. Minn. Civ. No. 0:15-cv-02646-ADM-SER, filed June 4, 2015)

OFCCP/DOJ/OSHA Have Also Weighed In

• August 2014: OFCCP Directive (“OFCCP continues to seek to remedy any findings of sex discrimination against transgender employees that are discovered by OFCCP compliance officers during scheduled compliance evaluations of federal contractors or subcontractors.”)

• December 2014: DOJ says Title VII protects employees based on gender identity

• May 2015: OSHA releases restroom guidance

What are States Doing?

WA HRC regulations

• December 2015: HRC issued new regulations clearly prohibiting discrimination on basis of gender identity, gender expression, or sexual orientation

• Prohibits any 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 &

documentsCurrent policies

& practices

Restrooms &Locker Rooms

DiversityTraining

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 and gender 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

Federal Shift to Make I.D. Change Easier

Agencies no longer requiring surgery.

• US State Dep’t (June, 2010), Dep’t of Veterans Affairs, Office of Personnel Management, USCIS

• Social Security Administration (2013)– Submit passport, birth certificate or court order reflecting

change OR

– Dr. certification confirming “appropriate clinical treatment”

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

• “Other names used” on I-9 Form– Used to prevent mismatch if applicant fails to report name

change to SSA

– 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 EE to dress consistent with gender ID while complying with dress & grooming standards

• D&G guidelines must be reasonable and serve legitimate public purpose (e.g., safety, convey public image)

• Make sure gender neutral and doesn’t overly burden one sex.

– Jespersen v. Harrah’s Operating Co. (9th Circ. 2006), finding different but equal burdens ok

– Frank v. United Airlines (9th Circ. 2000), not equally enforced or more burdensome on one sex not ok

Health Insurance

• Sec. 1557 of ACA prohibits denying benefits on basis of sex.– Health insurers in and out of exchange

• DHHS regs in September, 2015 clarified that discrimination on basis of sex included gender ID.– Don’t categorically/automatically exclude coverage for

health services related to gender transition.

– Don’t deny or limit coverage for specific health services relating to gender transition if it would result in discrimination against transgender individual (e.g., ovarian cancer treatment for transgender male).

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.

• 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)

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

– 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

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.”

Diversity Training

Coaching Telephone-Based Employees

Receptionists, sales, and customer service

• Don’t assume gender from sound of voice

• Carefully listen for names

• Do you need to say “sir” or “ma’am”?

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.”

Preventing Harassment

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!

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/super 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 workers 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

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?

CONTACT INFO:• Kandis Sells• KandisS@vigilant.org• (425) 349-4477• www.vigilant.org