What is the State of US Transgender Employment Rights?
In March 2020, we spoke with Mullin Hoard & Brown partner Shawn Twing about the employment rights of transgender people. Two years on, we have had an opportunity to speak with him again about the current state of transgender employment rights. What areas have been settled, and where can legislation and employers stand to improve?
When you last spoke to Lawyer Monthly about transgender employment rights, you said that several US cities and states “have adopted explicit ordinances and statutes that prohibit discrimination on a person’s transgender. In addition, a state may have a public policy exception by virtue of the state’s case law.” Do you believe that these measures go far enough?
An interesting question. Recall that the Supreme Court of the United States affirmed what I refer to as “transgender status” as being protected under federal law. Specifically, transgender status is treated the same as “sex” under Title VII. Nonetheless, state and local laws will continue to play a significant role in addressing issues of discrimination and harassment, in particular with the work environment (e.g. access to bathrooms, locker rooms and other areas segregated by sex). Employers should do a workplace inventory to ensure their facilities are set up in a way to be inclusive and convenient for everyone. An example of what is not legally acceptable would be to insist a transgender person use facilities that are not up to par of other employees or require a significant inconvenience.
I also anticipate that the issue of sex-specific grooming and dress codes may serve a potential issue. This is particularly true for employees who self-identify as a specific sex regardless of their biological status. For this reason, employers should review their policies and procedures to ensure they are flexible to be accommodating. We should remember that state and local law can always provide more protection than federal law. Consequently, employers should be informed as to those laws. A simple shorthand and way to review these laws is to read the word sex as equivalent to the word transgender.
When discriminated against, it can often be challenging for employees to stand up for themselves. How can law firms encourage transgender employees, as well as employees from other minority groups, to seek legal support?
Preventative education and outreach to be inclusive and make sure HR professionals and managers understand how the law has changed and the ramifications. All employees should understand what is prohibited by state and federal law and the process of making reports or complaint internally within the organisation. The expansive nature of these anti-discrimination laws can cause overlap and the pace that the issue is changing in the public forum means that who is or might be protected cannot always be firmly established up front. For example, how to address individuals who identify as male or female regardless of any stated intent or desire to transition.
There must also be regular employee training on non-discrimination, non-harassment and inclusion in the workplace. Staying ahead of who is included for protection is not always straightforward given the ability of individuals to self-identify.
Employers should do a workplace inventory to ensure their facilities are set up in a way to be inclusive and convenient for everyone.
How can an attorney help transgender people gain the employment rights they deserve?
Transgender legal rights in employment have been established within agencies and courts. What seems to be playing out in public eye now is the political and social adjustments that must inevitably come with this expansion of the scope of employment law protection. We must never forget that what is legal, moral or ethical does not always line up. Consequently, this may be a time in which “less is more”, meaning employers should understand that an individual’s transgender status is simply a topic like race or sex that cannot be considered when making employment-related decisions. Attorneys for employers need to advise their clients accordingly.
In truth, employer and defense attorneys have the greatest opportunity to prevent issues before they arise. Employee and plaintiff attorneys should also keep in mind that working through problems as opposed to running straight to the courthouse (or agency) is not always in their client’s best interest. “The battle avoided is the battle best fought”. Of course, when law and fact issues collide, agency processes and courts are always available.
The preferred use of pronouns is going to be an issue until a new normal is established. It reminds me of my days in university and law school when expressions such as he or she, she (as a generic pronoun) or s/he were used as a way to establish a gender inclusive means of writing and communicating.
Do you believe law firms, on the whole, offer a safe space for transgender people?
This is a difficult question to answer because to my knowledge law firms have not participated in diversity surveys to the extent categories such as race and gender. However, the feedback I encounter from legal and other professionals reveals as much as anything confusion as to who is transgender. Particularly the concept of self-identity and preferred pronouns. As far as I am aware, the establishment of safe spaces for transgender employees working in law firms has not taken root on a profession-wide basis. This confusion is exasperated by media accounts regarding gender identity that seem to always express an extreme point of view whether positive or negative.
At this point, I recommend to my clients that they be responsive and respectful even in situations that may appear to be counter-intuitive or those where they simply do not have any experience.
The preferred use of pronouns is going to be an issue until a new normal is established.
Can you share an example of when a transgender employee has successfully taken legal action against a discriminatory employer or workplace?
A very early case came to me from a client that operated a manufacturing plant. An individual I will call John told the corporate HR department that they were in the process of transitioning from a man to a woman and as part of this transition the employee would wear women’s’ clothing and behave as a woman in the workplace.
This company took all the correct steps in my opinion. First, they acknowledged what the employee was reporting and took it seriously, Second, they decided for the employee to have convenient access to facilities. Third they instructed managers to be aware of any harassment such as jokes or ill treatment. To my knowledge, the employee completed transitioning and is still employed by the company. This case arose in the late 1990s and I applauded the employee for coming forward and giving the company a chance to be supportive and the company’s response in taking the matter serious and taking constructive steps not only for the individual employee but for the entire workforce.
Employers’ dress codes can have a hugely negative impact on transgender employees, with transgender people often expected to wear clothes that do not correlate with their gender identity. In your opinion, what can be done, both legally and socially, to address this particular problem?
Legally, the issue is pretty straightforward and can be addressed by revising gender-specific dress code to allow transgender employees to comply with the policy consistent with their transgender status. Employers should also be aware of any harassment that may arise in these situations to prevent an unlawful harassment claim. Employers should revise their workplace harassment policy and procedure to reflect this potential. Dress codes that are enforced for reasons of safety or a company’s branding that apply to everyone are still permissible.
What laws would you like to see introduced in the future to better protect transgender rights in the workplace?
At this time, I believe the legislation and case law has the issue well covered. The one issue that will have to be sorted out is who exactly is protected by those laws. Legislation that I believe would be helpful is guidance as to who falls within the protected status in order to lessen the inevitable differences in court rulings. Title VII’s prohibition of sex discrimination does not provide anything more than a label without a clear definition as to who will be protected.
Shawn D Twing, Partner
500 S. Taylor, Suite 800, Amarillo National Bank Plaza II, Amarillo, Texas 79101
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Shawn Twing is a partner at Mullin Hoard and Brown whose expertise rests with matters of labour and employment law, business transactions and agency practice. He is also a writer and speaker on labour and employment issues and hosts a yearly labour and employment seminar at Wayland Baptist University.
Mullin Hoard & Brown is a Texas-based law firm with a national practice, calling upon the expertise of 26 partners located across its Amarillo, Dallas and Lubbock offices. The firm advises individuals and business owners on matters involving labour and employment law, business formation, real property disputes, family law, appeals, contract disputes and many other areas.