EXPERT INSIGHT 57 APR 2022 | WWW.LAWYER-MONTHLY.COM hen 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 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? W Employers should do a workplace inventory to ensure their facilities are set up in a way to be inclusive and convenient for everyone.
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