The majority of our nation’s approximately 700,000 transgender citizens still are in limbo when it comes to employment security. According to the Human Rights Campaign (HRC), 33 states have no laws that bar workplace discrimination based on gender identity and expression. However, the transgender rights landscape is changing across the United States in ways that affect both employers and employees.
In November 2013, after two decades in committee, the Employment Non-Discrimination Act (ENDA) was finally passed by the U.S. Senate. The bill prohibits public and private employers, employment agencies, and labor unions from using sexuality or gender identity and expression as a basis for making decisions regarding employment, promotion, or compensation. The bill currently is under review by the U.S. House of Representatives.
Transgender rights and the courts
As transgender rights advocates have waited for Congress to rule on ENDA, they have pursued employment protection through the courts. The Equal Employment Opportunities Commission (EEOC) ruled in 2012 that employers who discriminate against employees or applicants based on gender identity and expression are violating the prohibition of sex discrimination contained in Title VII of the 1964 Civil Rights Act.
The EEOC based its position on the Supreme Court’s ruling on Macy v. Holder and on Price Waterhouse v. Hopkins, which argued that transgender discrimination is related to the sex of the victim and thus actionable under Title VII. The EEOC’s decision, issued unanimously by a bipartisan commission, applies to all federal agencies and departments. Thus, federal civilian transgender employees now are protected under EEOC policy. Currently, complaints of anti-transgender job discrimination can be filed with the EEOC, potentially motivating private employers to examine internal policies.
Employers take a stand
An ever-increasing number of companies have antidiscrimination policies that cover transgender people. According to Vanessa Sheridan, author of The Complete Guide to Transgender in the Workplace, “The private sector remains ahead of the political discussions … Increasingly corporate America is embracing the many benefits of a pluralistic workforce.” In 2000, only three Fortune 500 companies prohibited discrimination based on gender identity and expression. As of January 2013, 88 percent of the top 50 Fortune 500 companies and 67 percent of the top 50 federal contractors did so, according to the Williams Institute. Companies as diverse as JP Morgan, Macy’s, General Electric, Lockheed Martin, IBM, and FedEx Corporation are acting to protect transgender employees’ rights.
Employers and governments must implement measures to protect transgender citizens because, according to the National Center for Transgender Equality (NCTE), more than one transgender person in four has lost at least one job due to bias and ninety percent of them have experienced harassment or mistreatment on the job, particularly transgender people of color. According to a 2011 national survey conducted by the National Gay and Lesbian Task Force (NGLT), the unemployment rate for transgender people is twice the national rate, despite the fact they are more than twice as likely as members of the general population to hold advanced degrees. A recent survey of 6,450 transgender persons, titled Injustice at Every Turn and conducted by the NGLT and the NCTE, found that 26 percent had lost jobs because they were transgender or gender-nonconforming and 20 percent said they were removed from direct contact with clients because they were transgender.
Inclusiveness and allies
According to Dr. Jillian Weiss, author of Transgender Workplace Diversity: Policy Tools, Training Issues and Communication Strategies for HR and Legal Professionals, executives are changing their nondiscrimination policies, not only to attract transgender workers in particular, but also to attract employees who value inclusive corporate cultures. Other benefits of hiring transgender employees include attracting and retaining the people most qualified for the job, decreasing the risk and expense of legal action, and positioning a company as a diversity leader within an industry or the community. In other words, hiring transgender employees just makes good business sense.
A 2011 study by the Williams Institute reported that the primary economic motives behind adopting LBGT-friendly workplace policies cited most often by the top 50 Fortune 500 companies and the top 50 federal government contractors included better recruitment and retention, ideas and innovation, customer service, employee productivity, employee relations and morale, and securing business with public-sector clients. Adding phrases like “gender identity or expression” to job announcements and websites helps ensure diverse candidate pools. In short, creating and enforcing nondiscrimination policies consistently benefits employees and employers alike.
To reap these benefits, employers should begin by adopting a nondiscrimination policy that explicitly protects transgender employees. Transgender applicants who have completed their transition should be treated like all other employees once hired. Employees who decide to transition during the course of employment will require additional support. Employers should revise current policies, employee handbooks, and dress codes to make them gender-neutral; provide appropriate restroom access; update personnel records, nameplates, business cards, and security badges; and change leave-related policies and health care plans to accommodate needs of transgender employees. Holding managers responsible for an inclusive workplace will reflect upper management’s commitment in this area.
Employers who adopt a gender-identity nondiscrimination policy must be prepared to manage transitions, remembering that this process may take months or even years—each transition is as unique as the person living it. The human resource department is often the conduit through which the transitioning employee works. However, the degree to which the organizational culture embraces transgender issues can evoke support or discrimination claims. According to the Transgender Law Center, key questions to consider at the beginning of the transition process include the following:
• Who is in charge of helping the transitioning employee?
• What can transitioning employees expect from management?
• What are management’s expectations for staff and transgender employees during the transition?
• When, how, and to whom will the transition be announced?
• What is the general procedure for implementing a transition plan?
The goals of a transition plan are to provide for the safe and healthy development of transgender employees and to integrate the employee into the workplace without stigmatization. It is critical to include the transitioning employee in the process of creating the transition plan from the beginning, and to monitor the adjustment of the employee and coworkers through long-term follow-up after the transition. The transition team should include the employee, HR professionals, the immediate supervisor, and outside resources, such as the employee’s therapist, union representative, or a transgender workplace consultant. A top-level executive assigned to sponsor a transitioning employee sends a strong message of support when there are no “just like me” mentors readily available.
According to the HRC, guidelines for creating a transgender-friendly workplace must be tailored to the specific needs of the employee, but generally include the following actions:
• Treat transgender employees in a manner consistent with their gender expression, including the use of appropriate names and pronouns
• Maintain confidentiality and privacy
• Provide training for coworkers and managers
• Demonstrate support at the highest levels of management
• Apply the same performance standards to transgender employees as to all other coworkers
• Enforce zero tolerance for harassment
• Create an employee resource group for transgender employees
• Include transgender employees in the organization’s diversity metrics
It is important to take a wide-ranging approach to workplace diversity, including gender identity and expression. As the legal, governmental, and cultural landscape shifts for transgender citizens, the workplace must adapt by developing strategies to face new challenges and take advantage of opportunities resulting from these changes.
Dr. Jamie Capuzza is Professor of Communication and Director of the Gender Studies Program at University of Mount Union; Dr. Sandra R. Ekstrand serves as Associate Professor of Economics, Accounting and Business Administration. University of Mount Union is a four-year private institution located in Alliance, Ohio. Grounded in the liberal arts tradition affiliated with the United Methodist Church, the university is consistently ranked among the top in the nation by U.S. News & World Report.