As you likely know, the term “transgender” describes people whose gender identity or expression is different from their sex assigned at birth. Several states have made transgender status a protected class under state law. The question of whether transgender status is protected under federal law varies dependent on the jurisdiction and is frequently litigated. When employees transition their gender identity, employers often have questions about how an organization should (or if it must) accommodate them.
In this context, the question frequently arises of what to do when an employee begins using a name that is different than their legal name, especially when the name is indicative of a different gender. To mitigate the risk of litigation in states where transgender status is protected by law, employers and coworkers should consider using the name and pronouns that the employee prefers. Employers may also want to consider updating business cards, nameplates, and email addresses to reflect the employee’s chosen name. In states like Colorado and California, for example, the failure to use the pronouns associated with an employee’s gender identity is considered unlawful discrimination.
Though employees may be entitled to the use of their chosen name in the workplace, the question still remains as to what name should appear on business documentation. Employers should generally use the employee’s legal name for business documentation, such as personnel files, I-9 documentation, and payroll. This applies even when that name is inconsistent with the employees’ preferred gender. If the employee chooses to change their name legally, employers should then update their documentation to reflect the employee’s chosen name. In other words, employers should be mindful that federal agencies (like the Internal Revenue Service) have strict requirements when it comes to use of an employee’s “legal name” that cannot be circumvented by the preferences of that employee. Failure to abide by these restrictions may even result in liability for the employer.
Since workplaces commonly have separate bathrooms for men and women, employers may have questions about bathroom access for transgender employees. In many states with protections for transgender employees, these employees are required to have access to restrooms that correspond to their gender identity, even if it is different than their sex at birth. Indeed, these rules typically do not apply just to bathroom, but all gender-segregated facilities. It is important for employers to understand the regulations in the states in which they conduct business.
Employers may face a situation where one employee is uncomfortable sharing a restroom with a coworker who is transgender. Many states with protections for transgender workers hold that employers cannot question or ask an employee about their transgender status regarding bathroom choice. In these states, the discomfort of the coworker are usually outweighed by the legal or regulatory freedom of the transgender employee with respect to bathroom selection. One potential solution to this situation could be to allow the uncomfortable employee to use a restroom away from their typical work location. Some employers have implemented greater access to single user, unisex bathrooms, where possible, to avoid or resolve this issue.
Another question employers may face is how to enforce the dress code as it relates to a transgender employee.
Typically, transgender employees will assume the appearance and dress of their preferred gender. Employers are generally allowed by the laws in states that prohibit discrimination based on transgender status to impose a dress code that is reasonable and serves a business purpose. Employers may face an issue if they have gender-specific dress codes. Generally, it is recommended, in accordance with those state laws, that employees apply dress codes consistently between the preferred gender of the transgender employee and other employees of that same gender. This means that employers should not, given state law, require a transgender employee to dress in a way that would be inconsistent with their gender identity.