This week, Caitlyn Jenner brought the issues of transgenderism and transition to the nation’s checkout aisles and water coolers. Employers may wonder about the implications of a transgender workforce and how to avoid discriminating against it, particularly as regulations continue to trend towards protection and accommodation.
On the same day that Jenner first appeared post-transition, and at the request of the National Center for Transgender Workers, OSHA promulgated its Guide to Restroom Access for Transgender Workers to all employers under its jurisdiction. The guide lists as its core principle that “all employees, including transgender employees, should have access to restrooms that correspond to their gender identity,” and calls on employers to “find solutions that are safe and convenient and respect transgender employees” regardless of logistical difficulties.
OSHA’s guide follows a line of transgender equality efforts made in the federal sector. In 2013, the Office of Personnel Management (OPM) issued its Guidance Regarding the Employment of Transgender Individuals in the Federal Workplace, outlining a number of practical considerations pertaining to transgender equality for the federal employer.
As the OPM made clear, accommodation typically meant respecting the transgender employee’s wishes, including pronoun use (which pronoun does the employee prefer?), restroom access (the Guidance recommends giving access to the restroom corresponding to the individual’s gender identity, and forbids requiring proof of any surgery, reassignment, or other procedure before doing so), and confidentiality (what information does the employee want to share regarding their status?).
The OPM also clarified that federal employees may take available sick and FMLA leave during the gender transition process, and that FMLA leave is available to covered caretakers of transitioning individuals. For some, transition may involve counseling, hormone therapy, and one or more surgeries – all of which require time away from the office and an appropriate response from management.
Similarly, Executive Order 13672, signed by President Obama on July 21, 2014, expanded EO 11246 to prohibit federal contractors from discriminating on the bases of sexual orientation and gender identity. In announcing the EO, the Secretary of Labor noted, “laws prohibiting workplace discrimination on the bases of sexual orientation and gender identity are long overdue, and we’re taking a big step forward today to fix that.”
The OFCCP’s Final Rule, implementing EO 13672, took effect on April 8, 2015, and the Department of Labor reiterated that contractors must allow transgender employees and applicants to use restrooms consistent with their gender identity.
While many of these issues are now addressed at the federal level, private and/or state workplaces are still grappling with the application of existing federal and state civil rights laws that don’t squarely address transgenderism.
In 2011, The National Center for Transgender Equality and National Gay and Lesbian Task Force released the National Transgender Discrimination Survey. Ninety percent of survey participants reported either harassment, mistreatment, or discrimination at work, or hiding their true identity to avoid such treatment. This high incidence of complained-of activity, coupled with the EEOC’s recent litigation activity on behalf of transgender claimants, demands that all employers remain informed and mindful of the expanding protections for transgender employees in the public and private sectors.