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Transgender employees

One of my employees recently pulled me aside and told me that he is becoming a she. I want to support my employee in this endeavor, but I’m also concerned about what changes need to be made in the workplace. What do I need to know?

To start, begin referring to your employee as a female. “Transgender” is an umbrella term to describe anyone whose gender expression is nonconforming or whose gender identity is different from the sex they were assigned at birth.

Kudos to you for supporting your employee — gender transition can be tough enough without having to worry about whether one’s workplace is supportive. “Transition” can mean many things — it can include surgical procedures, hormone therapy and changing one’s name and/or sex on legal documents.

The Fair Employment and Housing Act makes it unlawful for employers to hire, fire or discriminate against an employee because of that person’s gender identity or gender expression. An employee need not communicate that they are transgender in order to be protected. Discrimination can take place by a supervisor, co-worker and even customers or clients.

As an employer, you should know that any health plans you offer to employees that are regulated by California cannot exclude transition-related care. It is discriminatory to deny medical leave for transition-related health care.

Other examples of discrimination include unconsented disclosure of an employee’s transgender status to co-workers, prohibiting contact with customers and requiring an employee to dress as a gender to which they don’t identify.

Restrooms can also present a difficult issue. It is discriminatory for you to prohibit an employee’s use of a certain bathroom or to require legal documentation of gender to use a specific bathroom.

In order to create a supportive workplace, start by creating policies that address common issues faced by transgender employees, including restroom use and uniforms. If you have an employee handbook, add gender identity and expression to your nondiscrimination policies. Make sure your employees understand these policies and that they are put into practice.

Respectfully ask the transitioning employee in private how they would like to be addressed. It is not appropriate to ask whether their transition included medical treatments or surgery, as it does not concern the employment relationship.

You must discipline any employee who discriminates against another. For example, if a co-worker intentionally calls the employee by their old name, or uses the wrong gender pronoun, you need to correct this behavior. You are liable for the discriminatory acts of your employees.

 

Mary Luros is a business law attorney with Hudson & Luros LLP in Napa, and can be reached at mary@hudsonluros.com. The information provided here is not legal advice, nor does it form an attorney-client relationship with the author. The author makes no representations as to the reliability or accuracy of the above information.

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