Learn what policies protect transgender, nonbinary and gender-nonconforming employees.
As society demands a more inclusive work culture, knowing how to properly treat your diverse employees is becoming a critical element to running a successful business. It is important for employers to be aware of the current human rights and equality regulations in place, as the social and political climate is ever-progressing.
Kryss Shane, a leading LGBT+ expert at ThisIsKryss.com, said failure to comply with equality regulations can be detrimental to a business's health.
"Employers whose behaviors lead them to be accused of discrimination against LGBT+ people often end up with a public relations nightmare," Shane told business.com. "Boycotts and lawsuits can result in a significant drop in business or even lead to the closing of a business."
Although society is making small strides toward inclusion, there is still a tremendous amount of work that employers need to do to close the gap. According to the recent U.S. Transgender Survey, transgender people are still frequently a target of employment discrimination in the United States, with 1 in 6 reporting employment discrimination.
Gillian Branstetter, spokesperson for the National Center for Transgender Equality, said that transgender people are three times more likely to be unemployed than the general population, fueling the high rates of poverty and homelessness among transgender people.
The statistics for all transgender, nonbinary and gender-nonconforming employees are staggeringly similar. As the U.S. edges toward inclusion, employers should be aware of, and abide by, any new or existing equality policies.
Discriminatory practices to avoid
There are many actions in the workplace that can be identified as discrimination against transgender, nonbinary and gender-nonconforming employees. These actions can range from small transgressions to major offenses and should be avoided at all costs.
"Paying someone less for the same work, firing someone, moving someone away from client-facing roles, or mandating a dress code that does not align with a person's sexual orientation and/or gender identity in general or after an employee comes out to their employer are all discriminatory practices in the workplace," said Shane.
Additionally, Branstetter listed the following as inappropriate behavior to avoid in the workplace:
- Refusing to use someone's correct name and pronouns
- Outing someone as transgender against their will
- Asking invasive or inappropriate questions about a transgender person's healthcare or anatomy
- Making rude jokes or comments about a person's transition or appearance
- Retaliating against someone who reports anti-transgender treatment
- Denying someone a promotion or job opportunity because they are transgender
Whether the listed behavior is illegal or not, it is important to be aware of what inappropriate offenses should be prohibited in your workplace.
Federal anti-discrimination laws
Under Title VII of the 1964 Civil Rights Act, employers are prohibited from discriminating based on race, color, religion, sex or national origin. However, the ambiguity of this law allows room for speculation and disagreement as to whether the same protections apply to people based on gender identity and sexual orientation.
Although there are no official federal anti-discrimination laws to protect transgender, nonbinary and gender-nonconforming employees, the Supreme Court is taking on three cases that could determine whether federal anti-discrimination laws (i.e., Title VII) should also apply to factors such as gender identity and sexual orientation in the workplace. These cases are said to be part of the court workload starting in October 2019.
City and state anti-discrimination laws
Although there are no federally mandated protections for LGBT+ people yet, many local officials are making strides for equality and human rights. Because of this, there may be legal protections for you to follow based on your city or state.
"Twenty-one states and over 300 municipalities currently have laws prohibiting anti-transgender bias in the workplace," said Branstetter. "Many others have issued bulletins prohibiting discrimination among state contractors or within state employee systems."
Each state varies in its level of protection, so it is important for you to learn about your region-specific laws. According to Shane, these laws are not always based on the size of the city or the way the state votes as a whole, so knowing one's own state's laws is crucial to ensuring that your business is compliant.
What employers can do
It is important to understand how your employees identify themselves so you can properly address them and comply with their needs. To do this, you should first familiarize yourself with the correct definitions of terminology like "transgender."
PFLAG defines "transgender" as a term describing a person's gender identity that does not necessarily match their assigned sex at birth. It can sometimes be referred to as "trans," "female to male (FTM)," "male to female (MTF)," "assigned male at birth (AMAB)," "assigned female at birth (AFAB)," "genderqueer" or "gender-expansive."
Other common terms you should have a clear understanding of are "gender," "cisgender," "gender nonconforming," "intersex," "LGBTQ+" and "nonbinary." Although definitions can vary by state, you can find a complete definition of working terms on the PFLAG National Glossary of Terms.
Regardless of the lack of comprehensive state or federal anti-discrimination laws, employers can enhance diversity and inclusion in the workplace by making and enforcing their own internal policies.
"[Employers] can add 'sexual orientation and gender identity' to their own nondiscrimination policies and hold themselves accountable," said Shane. "This can provide great opportunities to hire the best in the industry, as it does not allow for discrimination to occur the way it may in competitors' businesses, which can give your business a great advantage."
When you introduce new inclusive policies into your company handbook internally or through a PEO service, be sure to host mandatory training seminars to inform your staff of the changes. If you are still unsure of how to create a diverse and inclusive workplace, you can reach out to LGBT+ experts for assistance in ensuring that your business practices are LGBT+ inclusive.
"It is not a matter of if a transgender person will join your workplace, but when," said Branstetter. "Discrimination against transgender people can be prevented with HR policies reflecting the legal and moral necessity to foster an inclusive workplace."