4 More Things to Know About Transgender Rights in the Workplace

An employee’s transgender status should be considered confidential and should not be disclosed without the employee’s express consent.  In some instances, an employer or even a transgender employee may believe an announcement is appropriate to lessen the employee’s and co-workers’ discomfort, answer questions, and avoid harassment.  Be thoughtful about both the content and tone of the message.  It may be helpful to inform co-workers how to address the employee, including new name or nickname and pronouns, based on feedback from the transgender employee.  In conjunction with an announcement, an employer may also want to provide additional training for Human Resources, managers, and/or coworkers regarding prohibitions on discrimination and best practices for dealing with possible discriminatory behavior.

A funeral home in Michigan faced a federal lawsuit brought by the EEOC when it fired a female transgender employee for violating the dress code.  At issue in EEOC v. R.G. & G.R. Harris Funeral Homes was a sex-specific dress code that required males to wear a pants suit and tie, and required females to wear a skirt suit.  Although the court ruled that the funeral home’s pre-existing dress code was not a defense to the wrongful termination claim, the funeral home ultimately prevailed due to an exemption in the Religious Freedom Restoration Act (“RFRA”).  The judge determined that removing gender stereotypes in the workplace was a compelling government interest, but rejected the idea that allowing the transgender worker to wear a skirt suit was the “least restrictive means” of removing gender stereotypes.  The Court suggested that a gender-neutral dress code would have been a less restrictive means.

Avoid litigation over a dress code before it begins.  Employers are encouraged to explore changing or removing sex-specific dress codes and appearance rules.  In addition, allow enough flexibility in the dress code to accommodate transition from one gender to the other.  As explained in the prior installment, 5 Things to Know About Transgender Rights in the Workplace, gender transitions are not all the same and can take place in stages over years.  Finally, dress codes should be enforced fairly and equally to avoid claims of special treatment.

Employers should also note that if a gender-transitioned employee was validly married prior to the transition, the transition does not affect the validity of that marriage.  Benefits provided through spousal coverage generally should be extended or continued even though the transitioned employee has a new name and gender.