Best Practices for Navigating Gender Identity in the Workplace

In 2020, the Supreme Court ruled in Bostock v. Clayton County, Georgia that sexual orientation and g...



Posted by Berkshire on September 20 2021
Berkshire

In 2020, the Supreme Court ruled in Bostock v. Clayton County, Georgia that sexual orientation and gender identity are protected under Title VII of the Civil Rights Act of 1964. Since then, the Equal Employment Opportunity Commission (EEOC) has further defined actions that could constitute harassment of an employee, including “intentionally and repeatedly using the wrong name and pronouns.” More recently, the U.S. Census Bureau rolled out new survey questions with updated language — marking the first time a survey sponsored by the Census Bureau asks questions regarding sexual orientation and gender identity. 

The times aren’t just changing: from a legal standpoint, they’ve already changed. But there’s still much progress to be made. Recent research from UCLA’s Williams Institute found that 38% of LGBT employees experience harassment at work. Employers are understandably keen to update their practices and policies to respect employees’ expression of gender identity, establishing an environment of understanding and tolerance. Here’s how to do it.

Revisit and Revise HR Policies

Now that transgender and nonbinary employees are protected under Title VII, it’s illegal to discriminate against employees on the basis of their gender identity. Employers must take steps to eliminate the harassment creating a hostile work environment for these individuals.

Intent matters, says attorney Peter Cassat, partner at Culhane Meadows PLLC. Accidentally misgendering someone doesn’t constitute harassment under the EEOC, but deliberate or repeated misgendering does. Develop policies outlining respectful and appropriate interactions with gender non-conforming employees. Communicate that infractions will not be tolerated.

Companies typically already have policies in place addressing discrimination. “Ensure that [existing] non-discriminatory policies and practices incorporate gender identity specifics,” says Kerry Mitchell Brown, PhD, equity strategist and cultural architect at Kerry Mitchell Brown Consulting

Revise employee handbooks and other HR documents to include gender-neutral language. Change gendered pronouns in HR documents to the neutral “they/their/theirs.” This includes updating dress codes to eliminate gendered language and requirements.

Restroom access is a hot button topic, and one that you must address if you have employees working together in a physical workspace. OSHA guidance dictates that employees should be “permitted to use the facilities that correspond with their gender identity.” Employers can turn restrooms into unisex facilities or, for single-occupant restrooms, remove gender markers altogether.

“Make sure that the person understands that they're fully entitled to use the facilities that are associated with the gender with which they identify,” Cassat says. Communicate all restroom options to employees so they can decide where they feel most comfortable.

Educate the Workforce on Gender Expression

Even before the Supreme Court’s 2020 Title VII ruling, many employers proactively implemented policies against harassment and discriminatory behavior against transgender and nonbinary employees. Others took action soon after. Regardless of their response (or lack thereof), there remains one area where all companies can benefit from continued investment: education.

Cassat notes the importance of companies continuing to improve “on the training and the policy aspects.” Education is a valuable part of normalizing non-traditional gender expression. Provide training on gender identity and expression as part of your diversity and inclusion initiatives.

From a compliance perspective, this training should provide examples of discrimination based on gender identity, and reinforce policies against discrimination. From a cultural and best practice perspective, Brown advises training the workforce (especially managers) on respectful communication regarding gender identity and expression. Make a point of sharing a glossary of key terminology used in regards to gender identity, such as this one from the Department of Labor

Cultivate a Culture of Safety

Transgender and nonbinary employees face rampant discrimination in virtually all aspects of their lives. You can help guarantee that isn’t the case at work. Go above and beyond compliance to create a positive culture — a culture where all employees feel safe expressing themselves without fear of injury or retaliation. 

Ensure that your lived values are aligned with your espoused values. This starts with leadership. Company leaders must implement policies to support transgender and nonbinary employees, show support for LGBTQIA+ affinity groups and behave in ways that demonstrate respect for members of those groups, both inside and outside the company. 

“Make sure that the folks who have the greatest exposure — typically organizational leaders — actually model the behaviors that are desired,” Brown says. “There’s nothing worse than to have the right words but contradictory behaviors.”

When it comes to words, personal pronouns carry a unique significance. You should strive to create an environment where employees are encouraged to share their preferred pronouns, but never compelled to do so. The intention is to minimize misgendering, Brown says, not to force someone to offer information they aren’t currently comfortable sharing. Employees may simply not feel safe disclosing their gender identity. 

It is important, however, to give employees an opportunity to disclose their preferred names and pronouns. This signals that the company respects and values their identity. Employees initially hesitant to share may become more comfortable as the company continues to demonstrate its commitment to tolerance. Brown observes that by normalizing pronoun sharing, it is possible to help transgender and nonbinary employees feel more comfortable sharing their preferences and, in the process, their identity.

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