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Transgender Employee Issues

Being a transgender individual is not a new occurrence, but it has become more talked about in recent years. This is mainly due to the popularity of transgender celebrities, such as Caitlyn Jenner – formerly Bruce Jenner – and Laverne Cox, an actress from the successful Netflix series Orange is the New Black. While being a transgender actor or actresses probably comes with its own challenges, most transgender individuals can face everyday discrimination in things like housing and employment.

This article focuses on laws that prohibit transgender discrimination in employment and policies and practices that will help create a fair and welcoming work environment for all employees. You can visit FindLaw's Employment Law and Human Resources section for more information related to various human resources issues.

Transgender Employees and the Federal Government

Although there are many laws prohibiting various forms of employer discrimination, there is currently no federal law specifically protecting transgender applicants or employees from discrimination. Recent federal court cases, however, have found that transgender discrimination falls into the category of sex discrimination. With that interpretation, transgender applicants and employees are protected under Title VII of the Civil Rights Act of 1964, which bars employers with 15 or more employees from discriminating based on sex.

In addition, the U.S. Attorney General announced in 2014 that the U.S. Department of Justice will consider employment discrimination against a transgender person as discrimination based on sex. The Equal Employment Opportunity Commission (EEOC) also agrees with the Department of Justice's policy concerning transgender discrimination.

State Laws Addressing Transgender Discrimination

Many states and local governments have enacted laws that protect employees from discrimination based on his or her status as a transgendered individual. The American Civil Liberties Union website provides helpful information for state and local laws involving transgender discrimination, which vary quite a bit.

Some states include transgender protection in their laws that protect people from discrimination based on sexual orientation, while other states protect such employees in their laws prohibiting sex discrimination. Since the laws vary from state to state (and even among local governments), it's important to check the laws in your area to see what laws are applicable to your organization.

Policies and Practices for Transgender Inclusion

Whether or not state transgender discrimination laws or federal sex discrimination laws apply to you, it's best to have policies and practices that address current or future transgender employees. First, it's a good idea to develop and integrate a diversity policy that includes transgender employees. The policy should generally state the commitment of your business to equal treatment of its employees and the business' desire to encourage and maintain an atmosphere of tolerance. Other policies and practices that can make your business more comfortable for transgender employees include having a gender-neutral dress code, providing information and training about gender identity in your diversity training, and establishing a guideline for gender transitions.

If you have an employee who has decided to transition from one gender to the other, there can be things you can do to help make the transition a smooth one at work. First, you should update the information in the employee's records. This includes things like ID badges, organizational charts, and assuming the employee has legally changed his or her name, in the insurance information. There are also practical matters that you will need to attend to. For example, you may want have a workplace training session to prevent employees from acting in a manner that may be considered harassment or discrimination. Also, the Occupational Health and Safety Administration (OSHA) generally recommends that people should have access to the bathroom that corresponds with their gender identity.

Getting Legal Help

Having a transgender employee can be a complicated and sensitive issue for both you and your employees. If you have any questions or concerns about the best way to handle a transgender employee, you may want to contact an employment attorney in your area.

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