Wednesday, November 30 2022

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Compassion can be a great tool in many of the activities we do in the area of ​​human resources and in the legal world of labor and employment. It’s also a great starting point when an employee walks into an HR or supervisor’s office to say they’re going to be gender transitioning.

When accommodating transgender employees at work, a number of federal, state, and local laws may come into play, including Title VII, Title IX, OSHA, and the ADA. Since the Supreme Court ruled in Bostock case that the term “sex” in Title VII protects against discrimination based on sexual orientation and gender identity and expression, it is clear that these employees enjoy legal protections throughout the United States.

In this sense, very recently, another federal appeals court ruled that not only Title VII, but also the ADA, provides employee protections diagnosed with gender dysphoria (the feeling of discomfort or distress that may occur in people whose gender identity differs from the sex they were assigned at birth or physical characteristics linked to sex). This ADA protection not only means that employers cannot discriminate against transgender employees with this condition, but also — very importantly — that employers must reasonably accommodate such employees under the ADA.

Back to compassion.

It is clear that employers have legal obligations and want to avoid the courts. In addition to these legal formalities, most employers also want their employees to do the right thing. Employees who go through a gender transition often worry about being rejected, belittled, and belittled not only by their co-workers, but also by their supervisors and even by HR.

Transitioning employees typically approach their employers in a state of vulnerability. Just as the company will have questions about which washrooms or locker rooms the employee should use, so will the employee. And just as the company will ask questions and need to figure out what name, pronouns and dress code should be used, so will the employee. Inform the employee – right away in the process – that the company is interested not only in complying with the law, but also in ensuring that the employee feels safe and accepted in it, will go a long way in achieving the correct results for the company and the employee and also a long way to go to avoid legal claims.

For example, once an employee has notified a gender transition, HR and others should consider contacting legal counsel to review the laws discussed above; remove all company policies that directly or indirectly apply to transgender employees (and create new ones if they don’t already exist); propose a game plan that includes target dates; meet early and often with the employee to discuss what the company plans to do; and ask the employee what they are looking for.

A useful thing to tell the employee is that this situation will most likely be a learning process for everyone involved, including HR, supervisors, co-workers, outside vendors the employee comes into contact with and even the employee himself. Employers should mention that in consultation with the employee on privacy issues, training will be provided to various colleagues who regularly work with the employee, including training on the meaning of transgender status, appropriate use of names and pronouns and related issues. Mistakes can happen, such as a colleague forgetting to use the new name or the correct pronouns at the start. Real mistakes are not intentional harassment or discrimination, and everyone involved – including the transitioning employee – should understand that this is a new process for everyone. Explain these issues to the employee with compassion is an important key to successfully managing gender transition in the workplace.

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