Human Resource professionals are responding to the latest trends in transgender law. From the statehouse, to the courthouse to the federal government, complex legal and social issues land again on the desks of business leaders. This is about much more than bathrooms.
The clear trend in the United States is to protect transgender rights, behaviors, wishes and sensibilities in the same way other categories are protected from maltreatment.
Since 1989, the U. S. Supreme Court interpretation of federal sex discrimination law (Title VII) broadened beyond biological sex and sex harassment claims. Sexual stereotyping of someone presenting in a non-traditional way became unlawful. Various Courts of Appeal in the federal system expanded that finding in the 2000’s.
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Twenty states now broadly protect sexual orientation and gender identity in their state equal opportunity laws. Federal contractors nationwide are subject to President Obama’s Executive Order 13672 (since its April 2015 effective date) requiring similar protections in a contractor’s workplace.
More recently, the U. S. Equal Employment Opportunity Commission restated its view that Title VII currently requires every public and private employer with 15 or more employees to comply. “Gender-based stereotypes, perceptions, or comfort level must not interfere with the ability of any employee to work free from discrimination, including harassment.”
The EEOC believes that supervisory or employee anxiety, the desire to protect people of one gender over another, or the accommodation of people’s discomfort is not a defense to discrimination. Finally, “contrary state law is not a defense under Title VII” nor are personal or religious beliefs.”
It is true that the U. S. Supreme Court has not yet spoken and attempts to amend Title VII to explicitly include those broader protections failed. But trends in the law favor the EEOC position. The EEOC is filing suits around the nation seeking court orders supporting its views.
Business leaders have some choices to make. There is some ambiguity in today’s law. Courts usually defer to the EEOC’s view, but not always. The questions are the depth of your personal convictions (either way), your risk tolerance and the state of your bank account. Litigation is a very expensive and often unsatisfactory business strategy. Employee perceptions and relationships are important considerations as well.
Those that choose to follow the EEOC’s expanded view have some best practices. Transgender employees or applicants deserve the internal processes, equality, respect, treatment and comfort that others enjoy. The role of HR is to listen, understand an individual’s needs and engage in a flexible path forward that meets those needs. Laws around legal names on tax or benefit forms must be met, but changing a preferred name internally without a legal change is probably required by EEOC guidance, for example. Logistical accommodations are good discussion topics, but medical inquiry is not.
HR often serves as intermediary between the needs of society and the needs of a business. It is an important, honorable and difficult role.
Bruce Clarke, J.D., is CEO of CAI, helping more than 1,000 North Carolina employers maximize employee engagement and minimize employer liability. For more information, visit www.capital.org.