ARLINGTON, Virginia — The number of people who identify as transgender grows every year, so employers should be aware of the laws and best practices regarding the transgender individuals among their employees.
A new Pew Research Center survey from June reports that 1.6% of adults in the U.S. identify as transgender or nonbinary. Roughly 5.1% of adults younger than 30 identify as trans or nonbinary.
At the Hospitality Law Conference Washington, D.C., Andria Ryan, partner and co-chairperson of the Hospitality Industry Group at Fisher Phillips, spoke about the need for hoteliers to understand the laws regarding transgender employees and to handle practical situations with respect and sensitivity.
Understanding the Law
Congress passed Title 7 in 1964, prohibiting discrimination based on race, national origin, religion, color and sex. Over time, it’s also included pregnancy, age and other factors, but it still does not include sexual orientation, gender identity, transgender status or transitioning status.
Ryan said that has left gaps at the federal level with discrimination and harassment statutes, but some states, courts and administrative bodies, including the Equal Employment Opportunity Commission, are trying to fill those gaps.
In June 2021, the U.S. Supreme Court ruled in Bostock vs. Clayton County that firing someone for being homosexual or transgender was a violation of Title 7. That decision did not, however, address any issues regarding religious freedom.
The Fourth Circuit Court of Appeals has joined a growing number of courts that have ruled that gender dysphoria is a disability that falls under federal discrimination laws, Ryan said. Gender dysphoria is a medical condition that causes incongruity between a person’s gender identity and their assigned sex, resulting in clinically significant distress.
Not everyone who is transgender has gender dysphoria, she said. However, because of the ADA’s requirement to provide reasonable accommodations for employees’ disabilities, many of her clients have taken the approach of not inquiring further whether employees who identify as transgender have gender dysphoria, she said.
“If one of my clients has an individual come in and say, ‘I’m transgender,’ or ‘I identify as male or female,’ my practical advice to them is: Go with it,” she said.
Appearance Policies
Employers can have strict policies around appearance for male and female employees, Ryan said. The employer should, in a respectful and sensitive way, explain the appearance policies and explain that the employee or job applicant can identify however they need to, but would need to follow the appearance policies for that gender.
For an individual that is gender fluid and sometimes identifies as male and other times as female, the practice can be the same, she said. On days the individual presents as male, the male appearance policy applies. When identifying as female, the female policy applies.
“We want them to know we’re willing to work with them,” she said. “We do have some standards.”
Employers also should let employees know that they and their coworkers are required to use preferred pronouns, but sometimes people will slip up, she said.
Respect and Sensitivity
The U.S. Department of Justice requires federal contractors to let transgender employees use the restroom facilities of their gender identity, Ryan said. The Occupational Safety and Health Administration also states transgender employees should have access to restrooms designated for use by the gender they identify with. State and local legislatures have passed similar laws. Some states have gone the other direction, passing bans on such policies, but one of those states, North Carolina, reversed its ban.
The coworkers of a transgender or transitioning employee may not be comfortable using the same locker room or restroom, and should have the option of using an alternative space, such as a private or gender neutral restroom, Ryan said.
“We are required to allow the employee who is transgender or transitioning to use the restroom of their choice,” she said.
Issues such as these, either with employees or guests, are likely going to come up first with front-line employees or supervisors, not necessarily human resources, the department head or general manager, Ryan said.
“We've got to make sure those folks are ready and prepared to discuss these sensitive issues with employees and bring it to somebody's attention for some help,” she said.
She said she has trained clients on policies with an appropriate emphasis on company expectations for an inclusive environment and on harassment.
When dealing with sensitive situations, being upfront with employees can go a long way, Ryan said.
“Talk to them upfront and say you understand and, ‘We’ll work with you. We’ll do what we can to make sure people are respectful in your work environment. Please let us know when they're not,’” she said.
Employers and managers must be alert to bullying and other unprofessional conduct, Ryan said. A client of hers called recently about an assistant front office manager who has been warned several times against referring to a male employee as “queer” or “queen.”
“This is a 50-something-year-old female assistant front office manager who has been terminated for violation of the company's no harassment policy,” she said. “She's been warned. She's been asked. Now she's going be terminated for violation of the harassment policy.”