With Bruce Jenner-the Olympic athlete and reality television star-recently announcing that she was transitioning into her female identity, Caitlyn, transgender issues have resurged in news and popular media. Now, more than ever, employers should be aware of laws and policies which may affect current or future transgender employees.
To begin, a brief review of some terminology may be helpful. A transgender person is an individual whose internal gender identity is different from his or her sex assigned at birth. The Transgender Law Center defines gender identity as "a person's internal, deeply-felt sense of being male, female, or something other or in-between." When a person begins living his or her life in accordance with their gender identity rather than a birth-assigned sex, this process is known as transitioning. Transitioning may involve social changes, like being called by a new name, or medical changes, such as sex-reassignment surgery.
Iowa law prohibits discrimination against transgender employees. The Iowa Civil Rights Act ("ICRA") prohibits employers from "refus[ing] to hire, accept, register, classify, or refer for employment, discharge[ing] any employee, or otherwise discriminat[ing] in employment against any applicant for employment or any employee because of . . . gender identity." Further, according to the Equal Employment Opportunities Commission and the Department of Justice, Title VII, a federal law, makes it illegal to discriminate against any employee on the basis of "sex." Previously, the courts had determined that sex discrimination did not include transgender discrimination claims. However, in the 2012 decision of Macy v. Holder, the U.S. Equal Employment Opportunity Commission determined the opposite-that a claim of transgender discrimination could be brought under Title VII's prohibition of discrimination on the basis of sex. The decision resulted from a complaint filed with the Bureau of Alcohol, Tobacco, Firearms and Explosives by a police detective who was rejected for a position because she was transgender. After the Bureau refused to process the complaint, the employee appealed to the EEOC, which found that the claim was viable under Title VII's "sex" provision. The EEOC remanded the matter to the Bureau with instructions to process the claim. As recently as December of 2014, the Department of Justice has officially taken the same position. From this guidance, it is likely that future transgender and gender identity discrimination claims will be actionable under Title VII. Therefore, an employer who discriminates on this basis could be held liable under federal law in addition to Iowa law.
One transgender issue that employers often face is questions regarding bathroom and restroom use. The Occupational Health and Safety Administration (OSHA) recently issued guidelines for compliance with restroom and locker room regulations as they pertain to transgender employees. OSHA recommends that employers allow an employee to use the restroom that corresponds with the employee's gender identity. Further, transgender employees should not be required to use a separate facility from the rest of the workforce. Likewise, the Iowa Civil Rights Commission has interpreted the ICRA as entitling transgender individuals to use a restroom appropriate to their gender identity without having to provide documentation or respond to invasive requests.
Transgender employees and employers may also confront issues under the Family Medical Leave Act. This federal Act allows employees to take leave from work for a number of reasons including due to the serious health condition of the employee or a family member. Transgender employees are entitled to the same benefits as other employees under the FMLA. Gender identity disorder likely qualifies as a serious health condition. Therefore, an employee diagnosed with gender identity disorder is entitled to up to 12 weeks of FMLA leave for procedures and treatments associated with the condition, including hormone therapy or sex reassignment surgery.
Aside from federal and state law, there are a number of recommended policies that many employers have implemented regarding transgender issues. For example, some companies have adopted a policy whereby transgender employees can change their employment records upon request to reflect a change in name or gender. Records that may be changed without official documentation include letterhead, nameplates, e-mail addresses, and internal records. Additionally, many employers have decided to implement gender-neutral dress codes in order to accommodate transgender employees; these dress codes specify that employees dress "neatly" and "professionally," rather than imposing specific requirements on males and females. Finally, the Transgender Law Center recommends that companies set out transition plans for transgender employees. Transition plans can help both the employer and employee know what to expect from the transitioning process, and include terms such as transition dates (when all personnel files will be changed), points of communication for the employee, and protocols regarding if and when to inform team members and managers of the change. These policies may help transgender employees to feel more welcome in the work environment.
In short, employers should know how to confront and manage issues that may arise with a transgender employee or applicant. Familiarity with laws and common policies will help with this process. If you have any questions regarding laws or policies as they pertain to transgender employees, please feel free to contact Ahlers & Cooney, PC.
Ahlers & Cooney's Labor & Employment Practice Group
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