Leslie M.G Hayes

Emma C. Nowacki

Published June/July 2022

It takes tremendous courage for a transgender employee to make the decision that he, she, ze,[1] or they is ready to come out in the workplace.  This article is intended to help employers and their attorneys navigate the legal issues presented once a transgender employee is ready to present at work consistent the employee’s gender identity.

Studies show that 77% of employed transgender individuals take steps to actively hide his/her/their identity to avoid mistreatment at work. This mistreatments manifests in many forms, including delaying gender transition, living as his/her/their true gender identity only outside of work, refraining from asking employers or coworkers to use correct pronouns, or quitting employment.[2]  A transgender individual may feel compelled to hide his/her/their true gender because of a feeling that he/she/they is “socially devalued” or may be subject to discrimination or harassment in the workplace.[3]  Creating a work environment that respects all individuals is not only important for recruitment and retention, but it is also required by Title VII of the Civil Rights Act of 1964.  This article will examine discrimination under Title VII, help you to learn the correct terminology, and provide a useful series of considerations to help navigate a transitioning employee. 

Discrimination on the basis of sex is protected by Title VII

In Bostock v. Clayton County, 140 S.Ct. 1731 (2020), the United States Supreme Court held that Title VII prohibits discrimination against an employee based on sex, which includes being homosexual or transgender.  The court reasoned that “[a]n individual’s homosexuality or transgender status is not relevant to employment decisions.  That’s because it is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex, which is expressly prohibited under Title VII.”[4]

The Court reasoned that where an employer fires an employee because her gender identity is female but her sex assigned at birth was male, and the employer retains an employee whose gender identity is female and sex assigned at birth is female, then “the employer intentionally penalizes a person” based on the individual’s sex. “[T]he individual employee’s sex plays an unmistakable and impermissible role in the discharge of the decision.”[5] 

With the Supreme Court’s recognition that this type of discrimination is covered under Title VII, employment attorneys must ensure their clients are aware of what this means.  In order to create a legally compliant work environment for all employees, it is recommended that employers conduct regular trainings addressing the respectful workplace.  This training should include at a minimum what is required under the law and what is expected under an employer’s respectful workplace policy.  Employers should consider updating respectful workplace policies to accurately reflect the law, including that discrimination based on gender expression or gender identity is a violation of Title VII and the employer’s policy.

Educate your Workforce and Learn the Terminology

Before you are ready to help an employee navigate the process of coming out in the workplace, it’s important to make sure that everyone in human resources and upper management has been educated on the topic of transgender rights. It is also important to educate your workplace on proper terminology and what it means.

There are plenty of resources to provide for that education, one of which is the Human Rights Campaign.[6] Let’s start with a few terms that we’ve used already.  The term “gender” is one’s innermost concept of self as male, female, or a blend of both or neither.  This is how individuals perceive themselves and what they call themselves.  One’s gender identity can be the same or different from their sex assigned at birth.   We all have a gender identity. 

Next, the term “transgender” is an umbrella term for people whose gender and/or gender expression is different from cultural expectations based on his/her/their assumed gender at birth. “Coming out” is the term used to describe the process in which a person first acknowledges, accepts, and appreciates their sexual orientation or gender identity and begins to share it with others. “Outing” someone is sharing an individual’s sexual orientation or gender identity without permission.  Outing an individual in a workplace can result in legal hazards, particularly if it leads to harassment or discrimination.

Finally, “gender expression” is the external appearance of one’s gender, usually expressed through behavior, clothing, and body characteristics or voice, which may or may not conform to socially defined behaviors and characteristics associated with being either masculine or feminine.  We all have a form of gender expression.  Long before Bostock, discrimination based on one’s gender expression was considered a violation of Title VII. In Price Waterhouse v. Hopkins, 490 U.S. 228 (1989), the Supreme Court held that discrimination against a woman based on her masculine gender expression was a form of discrimination under Title VII.  Price Waterhouse was used in two other circuits prior to Bostock to hold that Title VII also protects transgender employees.[7]

There are multiple other terms an employer must necessarily understand, including, but not limited to, gender-expansive, gender-fluid, genderqueer, non-binary, transitioning, cis-gender, deadname, and gender dysphoria.  If as you are reading this article and these terms are unfamiliar, it may be worthwhile to familiarize yourself with them so that you are prepared when a client brings them up.  Understanding this terminology will help an employer educate the workforce and create inclusion so that all employees may experience the safe and respectful workplace that he/she/they deserve.

You Have an Employee Ready to Come Out – What do you do?

Navigating the Initial Conversation – An Information Gathering Session: First and foremost, the employee should be reassured that the company will be supportive as he/she/they come out to the workforce as transgender or start the transition process. There are certain topics that should be covered in the initial conversation, such as the employee’s pronouns and what name the employee uses.  An employer should also determine whether an employee will legally change his/her/their name for the purpose of payroll and insurance benefits.  However, it should be made clear that there is no requirement to legally change the employee’s name at work.[8] If an employee informs the employer that the employee would like to use a different name, the employer should inquire if the employee would like to update business cards, email address, door name, etc.  An employee may also want to update his/her/their professional business photograph.

Another important topic to discuss is who the employee would like to share his/her/their news within the workforce.  Some employees may prefer to come out to only a limited workgroup; some may want to come out to the entire office.   You’ll also want to address the timing of the announcement and confirm who the employee is comfortable with you sharing the information so that you do not out an employee who is not ready.

Finally, you’ll want to discuss bathrooms and provide the employee with assurances that the organization permits all employees – not just transgender employees – to use the restroom that is most appropriate for him/her/them.[9] When any individual starts work at an office, HR does not assign him/her/them a bathroom.  An employee may use the bathroom most appropriate for the employee.

Communicating Transition to the Workgroup:  When communicating the transition to the workgroup, the most important aspect is to set the expectation for other employees without including extraneous information. A sample announcement email should be straightforward and to the point, and the employee must approve the language in the email.  For example:

Our employee, John Doe,[10] has changed her name to Jane Doe.  She is a transgender female[11] and she uses the pronouns she/her/hers.  Her right to a respectful workplace is not only covered under Employer’s respectful workplace policy, but it is also protected under Title VII of the Civil Rights Act.  I know you will join me in providing a warm welcoming workspace for Jane.

Depending on the culture within the organization, the employer may also want to include additional information on the expectation, including what may happen if an employee violates the employer’s respectful workplace policy or the law.  For example:

While we have never permitted discrimination on the basis of sex, including transgender status, I want to make clear that discrimination for any protected reason, including any sex-based discrimination, will not be tolerated, and will be subject to discipline, up to, and including termination.

While the transgender employee may prefer a more personal email that includes additional details, it is recommended that the organizational email simply set the expectation and give the necessary information, including pronouns and name.  If the transgender employee desires to send an email with additional information or prefers to make an announcement on his/her/their own, he/she/they may do so from his/her/their employer email address.[12]

How to Handle Mistakes[13]: After the employee comes out, mistakes may happen – both in name utilization and mis-gendering.[14]  While these mistakes might seem innocuous, they can cause significant distress for the employee and make him/her/them feel unsafe in the workplace.  The transgender employee may feel any range of emotions including embarrassment, rage, anger, or minimization, while the mistaken employee may feel embarrassed, sad, upset, or dismissive.  The most important thing a mistaken employee can do when mistakes happen is (1) quickly apologize; (2) quickly correct; and (3) move on.[15]  Employees can prevent future mistakes by practicing both name and pronoun utilization in his/her/their head or by concentrating while speaking with the transgender employee.  Courts have found that repeatedly mis-gendering an employee may be sufficient to support a claim for a hostile work environment and discrimination.[16]

Another important topic to discuss is who the employee would like to share his/her/their news within the workforce.  Some employees may prefer to come out to only a limited workgroup; some may want to come out to the entire office.

Sick or Medical Leave: Under the Family Medical Leave Act (“FMLA”), an employee may be able to take time off for medical needs related to transitioning or for treatment related to transgender status (example: depression or gender dysphoria).

As it relates to the where a transgender employee is in the medical-transition process, it is completely inappropriate for any employer or employee to inquire about another employee’s anatomy.  While an employer may require medical verification pursuant to an employee’s request for leave and/or an accommodation under FMLA and the ADA, it is inappropriate for an organization to share medical information of an employee.  If an employer shares medical information of an employee, it may be a violation of FMLA, ADA and/or Title VII. 

Interplay with Religious/Free Speech Rights: There may be instances where one employee’s religious beliefs or free speech rights conflict with a transgender employee’s rights.   In Meriwether v. Hartop, 992 F. 3d 492 (6^th Cir 2021), a professor of philosophy believed that God created human beings as either male or females and that sex is fixed in each person from the moment of conception.  Because of his religious beliefs, he refused to call one of his students a pronoun that he did not believe was consistent with the sex assigned to that student at birth.  Ultimately, he was subject to discipline by the university and filed a complaint alleging that the school violated his free speech and free exercise rights.  The Sixth Circuit reversed the lower court’s granting of the university’s motion to dismiss the complaint, explaining that the plaintiff had plead a plausible claim for relief that the school violated his free speech, and that the school’s pronoun policy was not religiously neutral.[17] On April 14, 2022, the university settled with Meriwether for $400,000 in damages and legal fees.[18]

It is not known yet how Idaho or the Ninth Circuit will view conflicts between an employee’s gender expression/identity with another employee’s free speech or religious beliefs, but it may be necessary for an employer to explore and provide an accommodation for an employee who refuses to use a particular pronoun for a particular individual.

Interplay with clients: An employer should also be prepared for the unfortunate event of a client who treats a transgender employee with disrespect or refuses to work with a transgender employee.  When a client displays disrespect or even refuses to work with a transgender employee because that employee is transgender, the employer must ensure that the employee is not being discriminated against by being denied workplace opportunities.  Employers are liable for discrimination or harassment caused by customers of the employer regardless of the employee’s transgender status.[19]  A transgender employee is entitled to the same treatment as all other employees.  

Conclusion

Creating an inclusive and respectful environment in the workplace is the first step in ensuring that the workplace complies with Title VII under Bostock.  Education is a key component in ensuring that human resources and management can navigate the sensitive practice.  Finally, the most important component may be patience as an employer and employee work through the processes of these dynamic workspaces in a respectful, nondiscriminatory manner.  

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Endnotes

[1] Neo-pronouns are gender inclusive pronouns – i.e., not gender specific pronouns.  An example of neo-pronouns are ze/hir/hirs.  Pronouns | Gender Identity/Expression and Sexual Orientation Resource Center at WSU found at https://thecenter.wsu.edu/education/pronouns (last accessed April 15, 2022).  Neo-pronouns are usually used at the request of the individual.

[2] Christian N. Thoroughgood, Katrina B. Sawyer, and Jennica R. Webster, Creating a Trans-Inclusive Workplace, Harv. Bus. Rev., March-April 2020, found at https://hbr.org/2020/03/creating-a-trans-inclusive-workplace (last accessed April 15, 2022).

[3] Id.

[4] Bostock v. Clayton County, 140 S.Ct. 1731, 1742 (2020)

[5] Id. at 1741-42.

[6] https://www.hrc.org/resources/glossary-of-terms (last access April 11, 2022).

[7] Smith v. City of Salem, 378 F. 3d 566 (6th Circ. 2004); Glenn v. Brumby, 663 F. 3d 1312 (11th Circ. 2011).

[8] There can be any number of reasons an employee does not want to legally change his/her/their name, including that the name change process is a public process, which requires publication in a local paper stating the reason for the name changes.  See I.C. § 7-803.

[9] While not all entities are OSHA-covered entities, OSHA has guidance that provides “All employees, including transgender employees, should have access to restrooms that correspond to their gender identity.”  https://www.osha.gov/sites/default/files/publications/OSHA3795.pdf (last accessed April 15, 2022).

[10] Not all employees are comfortable using his/her/their deadname.  If the employee does not want to use his/her/their deadname as a point of reference as to who the email is about, consider other identifying details, including job title or function within the organization.  Example: “Our staff attorney, Jane Doe, wanted us to share that she uses she/her pronouns . . .”

[11] While some employees will want to share his/her/their transgender status, not all employees are comfortable with that level of detail.  This is why it is important for the employee to approve the language within the announcement.

[12] An organization that does not regularly share personal information company-wide about employees (i.e., divorces, children, living arrangements, marriages), should not share similar personal information for transgender employees.  If your organization regularly distributes “welcome emails” about new employees, it would be appropriate to craft a similar email for the transgender employee, but ensure the employee approves the language and any photos that are included.

[13] It should be cautioned that there is a difference between a mistake and purposefully mis-gendering an employee.  The failure to correct the behavior by management could lead to a hostile work environment or discrimination claim.  See Doe v. Triangle Doughnuts, LLC, 472 F.Supp.3d 115 (E.D. Pa 2020); see also Eller v. Prince George’s County Public Schools, 2022 WL 170792 (D. Md. January 14, 2022).

[14] Mis-gendering is “[t]he act of gendering someone incorrectly.  This often involves using gendered words that are inappropriate or the wrong pronouns.”  Style Guide – Trans Journalists Association found at https://transjournalists.org/style-guide/ (last accessed at April 15, 2022).

[15] Christian N. Thoroughgood, Katrina B. Sawyer, and Jennica R. Webster, Creating a Trans-Inclusive Workplace, Harv. Bus. Rev., March-April 2020, found at https://hbr.org/2020/03/creating-a-trans-inclusive-workplace (last accessed April 15, 2022).

[16] Doe, 472 F.Supp.3d 115; Eller, 2022 WL 170792.

[17] A California Court made a similar finding based on a law that “prohibits staff members of long-term care facilities from willfully and repeatedly referring to a facility resident by other than the resident’s preferred name or pronoun when clearly informed of the name and the pronoun.”  Taking Offense v. State, 66 Cal. App. 5th 696, 702 (Ct. App. Cal. 2021).  The Court found that the statute was a content-based restriction on speech that could not survive strict scrutiny.  Id. at 706.

[18] Shawnee State University to pay professor $400K in pronoun lawsuit settlement: NPR found at https://www.npr.org/2022/04/20/10*36601721/shawnee-state-university-lawsuit-pronouns (last accessed April 21, 2022)

[19] Christian v. Umpqua Bank, 984 F.3d 801, 810 (9th Cir. 2020).