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Adding a Policy Protecting Transgender Workers in your Workplace

Avoid Discrimination and Employee Relation Problems By Creating Policies Regarding Transgendered Workers in the Workplace


Integrating transgender and transitioning workers into the workplace is good for business. For example, with transgender employees in its workplace, an organization can:

  • Attract and retain the people most qualified for particular jobs.

  • Become productive, innovative and creative, because inclusiveness means an employer can draw from a broad range of talented people.

  • Treat all workers fairly and judge them on their abilities, not on their gender identity or expression.

  • Demonstrate compliance with federal, state, local and global employment laws.

  • Fulfill diversity and inclusion initiatives.

The degree of success in a transition is strongly influenced by a person's ability to maintain a stable job and income during the process and by the level of support in the work environment. Thus, an employer's proactive participation is not only good for business it is also a good for the welfare of the individual employee.


Finally, it is unlawful for an employer to refuse to hire or employ a person, to discharge a person from employment, or to discriminate, harass, or retaliate against a person in compensation or in terms, conditions, or privileges of employment because of the person’s sexual orientation, gender identity, or gender expression. Cal. Gov’t. Code Section 12940(a), Cal. Gov’t Code Section 12926(p). These prohibitions apply to all employers, unions, labor organizations, employment agencies, and apprenticeship training programs. Effective January 1, 2018, the California Department of Fair Employment and Housing (DFEH) requires employers with 5 or more employees to post Transgender Rights in the Workplace Posters.


Sample Policy


Below, please find a sample policy a company can use or incorporate into its Employee Handbook to ensure that all of the above-referenced goals are adequately addressed.


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Transgender Rights in the Workplace Policy

Company prohibits discrimination, harassment, intimidation, bullying, retaliation, and violence in the workplace. This includes discrimination, harassment, intimidation, bullying, and violence based on or because of any personal characteristic that is protected by law. Included within those characteristics are sex, sexual orientation, gender, gender identity, and gender expression.


Purpose

This policy is designed to create a safe and productive workplace environment for all employees. As mentioned, our company does not discriminate in any way on the basis of sex, sexual orientation, gender identity, or gender expression. It is unlawful and violates company policy for any employee or vendor to discriminate in any way (including, but not limited to, failure to hire, failure to promote, or unlawful termination) against an employee because of the employee’s actual or perceived gender identity. Additionally it also is unlawful and contrary to this policy for any employee or vendor to retaliate against any person objecting to, or supporting enforcement of legal protections against, gender identity discrimination in employment.


This policy sets forth guidelines to address the needs of transgender and gender non-conforming employees and clarifies how the company will handle situations where questions may arise about how to protect the legal rights or safety of such employees. The policy does not anticipate every situation that might occur with respect to transgender or gender non-conforming employees. Rather, the needs of each transgender or gender non-conforming employee must be assessed on a case-by-case basis.


In all cases, the goal is to ensure the safety, comfort, and healthy development of transgender or gender non-conforming employees while maximizing the employee’s workplace integration and minimizing stigmatization of the employee.


Definitions

The definitions provided here are not intended to label employees but rather to assist in understanding this policy and the legal obligations of employers. Employees may or may not use these terms to describe themselves.


Gender identity:

A person’s internal, deeply-felt sense of being male, female, or something other or in-between, regardless of the sex they were assigned at birth. Everyone has a gender identity.


Gender expression:

An individual’s characteristics and behaviors (such as appearance, dress, mannerisms, speech patterns, and social interactions) that may be perceived as masculine or feminine.


Transgender:

An umbrella term that can be used to describe people whose gender identity and/or expression is different from their sex assigned at birth.


A person whose sex assigned at birth was female but who identifies as male is a transgender man (also known as female-to-male transgender person, or FTM).


A person whose sex assigned at birth was male but who identifies as female is a transgender woman (also known as male-to-female transgender person, or MTF).


Some people described by this definition don’t consider themselves transgender – they may use other words, or may identify simply as a man or woman. A person does not need to identify as transgender in order for an employer’s nondiscrimination policies to apply to them.


Gender non-conforming:

This term describes people who have, or are perceived to have, gender characteristics and/or behaviors that do not conform to traditional or societal expectations. Keep in mind that these expectations can vary across cultures and have changed over time.


Transition:

The process of changing one’s gender from the sex assigned at birth to one’s gender identity. There are many different ways to transition. For some people, it is a complex process that takes place over a long period of time, while for others it is a one- or two-step process that happens more quickly. Transition may include “coming out” (telling family, friends, and coworkers); changing the name and/or sex on legal documents; and, for many transgender people, accessing medical treatment such as hormones and surgery.


Sexual orientation:

Describes a person’s physical or emotional attraction to people of the same and/or other gender. Straight, gay, and bisexual are some ways to describe sexual orientation. It is important to note that sexual orientation is distinct from gender identity and expression. Transgender people can be gay, lesbian, bisexual, or straight, just like non-transgender people.


LGBT:

A common abbreviation that refers to the lesbian, gay, bisexual, and transgender community.


Privacy

Transgender employees have the right to discuss their gender identity or expression openly, or to keep that information private. The transgender employee gets to decide when, with whom, and how much to share their private information. Information about an employee’s transgender status (such as the sex they were assigned at birth) can constitute confidential medical information under privacy laws like HIPAA.


Management, human resources staff, or coworkers should not disclose information that may reveal an employee’s transgender status or gender non-conforming presentation to others.


That kind of personal or confidential information may only be shared with the transgender employee’s consent and with coworkers who truly need to know to do their jobs.


Official Records

Our company will change an employee’s official record to reflect a change in name or gender upon request from the employee. Certain types of records, like those relating to payroll and retirement accounts, may require a legal name change before the person’s name can be changed. Most records, however, can be changed to reflect a person’s preferred name without proof of a legal name change.


As quickly as possible, we will make every effort to update any photographs at the transitioning employee’s workplace so the transitioning employee’s gender identity and expression are represented accurately.


If a new or transitioning employee has questions about company records or ID documents, the employee should contact <INSERT NAME>.


Names or Pronouns

An employee has the right to be addressed by the name and pronoun that correspond to the employee’s gender identity, upon request. The intentional or persistent refusal to respect an employee’s gender identity (for example, intentionally referring to the employee by a name or pronoun that does not correspond to the employee’s gender identity) can constitute harassment and is a violation of this policy. If you are unsure what pronoun a transitioning coworker might prefer, you can politely ask your coworker how they would like to be addressed.


Transitioning on the Job

Employees who transition on the job can expect the support of management and human resources staff. We will work with each transitioning employee individually to ensure a successful workplace transition. Below, please find a general plan—subject to employee-specific modifications—to address an employee transitioning on the job:


Before the Workplace Transition Begins


1. The transitioning employee should get together with their selected first point of contact to make them aware of the employee’s upcoming transition. If the point of contact is not in HR, then the transitioning employee should be referred to HR.


2. Make sure the employee knows about the company’s transgender-related policies and the availability of transition-related health care benefits.


3. If the transitioning employee’s supervisor was not the first point of contact, a meeting between the transitioning employee and the employee’s supervisor—and others, if desired by the transitioning employee—should be scheduled to ensure the supervisor knows of the employee’s planned transition.


4. Management beyond the transitioning employee’s supervisor should be made aware of the employee’s planned transition so that leaders can express their support when the employee’s transition is made known to the employee’s work team.


5. The transitioning employee and their initial point person should meet to discuss all of the individuals who will need to be included in the workplace transition plan. At a minimum, this should include the employee, the employee’s immediate supervisor, and someone from HR.


All members of this transition team should familiarize themselves with the company’s policies and any other relevant resources that provide educational information about transgender issues.


6. Keep in mind that a time frame would be helpful for when each person needs to become involved in the employee’s transition process, as it is likely not all individuals of the transition team need to be brought on board at once.


7. Also recognize that certain stages of the workplace transition process will require more lead time than others. Set a timeline that attempts to realistically and accurately predict how long each step should take.


8. Create the employee-specific Workplace Transition Plan, making sure to address:


a. Date in which employees’ co-workers are made aware of the transition by the company.

b. Date in which employees’ co-workers are provided training—if any—regarding the transition.

c. Dates of any leave needed for pre-scheduled medical procedures.

d. Date(s) in which new photographs, email addresses, other contact information will be received by company.

e. Date in which the transition will officially occur, accounting for change in name, pronouns, gender expression, use of restroom.

f. Date(s) in which employee records will be officially changed.


The Day the Transition Will Be Made Known to the Work Team


1. Have a work team transition meeting that includes the transitioning employee, the employee’s supervisor, the employee’s co-workers, and any other team or regional leadership if they are able to attend live. Otherwise, remote conference any members of the transition team or the employee’s work team that cannot be there live.


2. Provide a handout[1] about transgender issues in the workplace and a copy of this Transgender Employment Policy.


3. The head of the employee’s work team should announce the transition, along with any other management present to show solidarity for the transitioning employee. The speakers will address:


a. Emphasize the transitioning employee’s importance at the company and the management’s complete support of the employee’s transition.

b. Review the company’s relevant nondiscrimination policies.

c. Indicate that the transitioning employee will be presenting themselves in accordance with their gender identity and this should be respected. The manager should also advise co-workers about the transitioning employee’s new name and preferred pronoun.

d. Make a point that the transition will not change the workplace and that everything should go on as it did previously.

e. Solicit any questions. Refer questions the manager cannot answer to HR.

f. If specific training is going to occur, the date should be announced at this meeting. If possible, the training should occur before the date of the employee’s official workplace transition.


The First Day of the Employee’s Official Workplace Transition

The transitioning employee’s supervisor should be clear that all elements are in place, in the same way the supervisor would for a new hire or transferred employee. These elements include:


1. Making sure that the transitioning employee has a new ID badge and photo if necessary.

2. Ensuring all work documents have the appropriate name and gender and checking that these have been changed in all of the places an employee’s name may appear.


Restroom Accessibility

Employees shall have access to the restroom corresponding to their gender identity.

Any employee who has a need or desire for increased privacy, regardless of the underlying reason, will be provided access to a single-stall restroom, when available. No employee, however, shall be required to use such a restroom.


Dress Codes

Our Company does not have dress codes that restrict employees’ clothing or appearance on the basis of gender. Transgender and gender non-conforming employees have the right to comply with company dress codes in a manner consistent with their gender identity or gender expression.


Discrimination or Harassment

Our Company is committed to creating a safe work environment for transgender and gender non-conforming employees. Any incident of discrimination, harassment, or violence based on gender identity or expression will be given immediate and effective attention, including, but not limited to, investigating the incident, taking suitable corrective action, and providing employees and staff with appropriate resources.

I hereby acknowledge that I have received a copy of Company’s Transgender Rights in the Workplace Policy. I have read it and understand its contents. I agree that I will follow and adhere to this Policy.


Employee Signature: _________________________________

Date: _________________________________

Employee’s Printed Name: _________________________________

[1] Please see DFEH-E04P-ENG, November 2017. Available here: https://www.dfeh.ca.gov/wp-content/uploads/sites/32/2017/11/DFEH_E04P-ENG-2017Nov.pdf

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© 2019 Hein, Esq.       418 B Street, 4th Floor, Santa Rosa, CA 95401        707-921-3913        justin@heinesq.com

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