Gender Transitions in the Workplace: An Employer's Responsibilities

In conjunction with America’s increasing support for lesbian, gay, bisexual, and transgender rights, transgender persons (people whose personal gender identity does not conform to the gender that they were assigned at birth) are becoming increasingly open about their efforts to transition physically and emotionally to the gender that reflects their personal identity. In many instances, gender transitions involve a person living every aspect of their life according to their personal gender identity—including at their job. 

When an employee undergoes a gender transition, it creates a very demanding situation for their employer. The employee’s gender transition will be among the most personal and most important periods in the employee’s life—it should be handled conscientiously. Yet, the transition is likely to create discomfort or even tension among some of the employer’s other employees. To avoid employment discrimination and harassment claims, an employer must ensure that it approaches an employee’s gender transition appropriately from an administrative standpoint and that it also appropriately manages the workplace environment.

In 2015, the Equal Employment Opportunity Commission (EEOC) established a bright-line rule for how employers must handle an employee’s gender transition: whatever gender the employee identifies with personally is the employee’s gender. This means that if a person who was born a man personally identifies as a woman, the employer must treat the employee as a woman. Any action by the employer that fails to accommodate the employee’s personal gender identity could be the basis for a discrimination claim. For example, in one recent case, an employee who was born a man informed his employer that he was transitioning to live as a woman. As part of a workplace transition plan, the employee and employer agreed that the employee would not use any female restrooms for a period of time. The employee, however, changed her mind and began using the woman’s restroom. When the employer sought to enforce the transition plan by temporarily preventing the employee from using the woman’s restroom, the EEOC found this action constituted discrimination. That the employee had initially agreed not to use the woman’s restroom made no difference; because the employer was preventing the employee from using the restroom that reflected the employee’s personal gender identity, the employer was discriminating. 

In addition to recognizing a transgender employee’s personal gender identity, employers must also ensure that a transgender employee’s coworkers handle the employee’s transition appropriately. If coworkers refuse to acknowledge a transgender employee’s personal gender identity or otherwise harass the employee about their status as transgender, an employer could be found liable for permitting a hostile work environment to exist. In one case, a hostile work environment was found to exist, in part, because coworkers refused to call an employee who had transitioned from male to female by the female name that the employee had asked to be called.

Gender transitions in the workplace are difficult to manage. Handling gender transitions properly requires time, effort, and managing any emotions and anxiety that complicate the situation. If handled properly, gender transitions need not interrupt harmony or productivity. But if an employer handles a gender transition improperly, it may incur liability for any discrimination or harassment that occurs.

Article written by Michael Keenan, Esq. For more information, contact Mr. Keenan at (607) 231 6927 or via email at mkeenan@hhk.com.

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