Having an employee announce that they’re switching sexes will likely raise a few questions in your workplace. Being prepared to answer them correctly can be the difference between maintaining order and landing in court.
Bruce Jenner, the famous stepfather (sorry … stepmother?) of the Kardashians, announcing to the world that he is transitioning from male to female is just the latest in a growing line of breaking news stories to bring the topic of transgender treatment to the forefront of employers’ consciousness.
Last fall, the EEOC filed two lawsuits against employers, claiming they illegally discriminated against transgender individuals. And in doing so, the agency made it clear that discriminating against any individual — male, female or someone transitioning to a difference sex — on the basis of the gender they identify with will draw its ire.
One of the employers, Lakeland Eye Clinic, just settled one of the suits for a whopping $150K, so this is not a topic to be taken lightly.
As more of these stories begin to break, expect more employees to begin announcing their gender transitions to their employers.
2 big questions, 2 answers
If one of your employees announces that they’re transitioning from male to female — or vice versa — there are likely two questions you’ll have right off the bat:
- Which bathroom should the person use?
- Do we call the person “him” or “her”?
The answers to both of these questions are actually pretty straightforward.
Which bathroom should the person use?
This is one of those rare situations in which you shouldn’t take immediate action based on co-workers’ complaints.
Yes, you should listen to — and take seriously — employees’ complaints about having to share a bathroom with a transgender individual, but you shouldn’t dictate which bathroom an individual uses based on complaints.
Here’s what the EEOC had to say on the issue in a case in which the Army was found to have improperly forced a transgender employee to use a single-person, gender-neutral bathroom (a tip of the hat to Evil HR Lady Suzanne Lucas for bringing this passage to our attention in a similar article she wrote for Inc.com):
“We recognize that certain employees may object — some vigorously — to allowing a transgender individual to use the restroom consistent with his or her gender identity. But supervisory or co-worker confusion or anxiety cannot justify discriminatory terms and conditions of employment.”
Bottom line: The EEOC says employers should allow employees to use the bathroom of the gender they identify with. So the EEOC would say Jenner must be allowed to use the women’s room, as that’s the gender Jenner now identifies with.
Do we call the person “him” or “her”?
The answer to this is a little more commonsensical: Call the person whatever he or she’d prefer to be called. Most likely this will correspond to the gender the person identifies with.
If you’re not sure, ask. It can pay to be proactive, rather than guess incorrectly and spark animosity — and possible legal action — from the employee.