Employers can learn a lot from Caitlyn Jenner. The ink on the Caitlyn Jenner cover of Vanity Fair magazine was not dry but social media was all atwitter over the transformation of Bruce to Caitlyn. The reactions to Ms. Jenner’s transformation was rarely neutral and many reactions were openly hostile. People expressed confusion about how to treat Ms. Jenner. What pronoun should be used? Which bathroom would she use? Many were uncomfortable with her glamorous female attire. Employers should be aware of the various reactions to this situation and learn from them.
California law protects against discrimination based on employees’ gender identity and gender expression characteristics.
Can an employer designate which bathroom a transitioning employee should use? In one California case, an employee whose sex assigned at birth was female identified as male. The employee was transitioning to male and the employer required him to use the women’s bathroom until that transformation was complete. The employee sued for discrimination under the Fair Employment and Housing Act (FEHA) and the employer sought to have the case dismissed. The court held the employee had stated a claim, reasoning that it would be unlawful for an employer to require a transgender employee to use the bathroom and locker room of his or her birth-assigned sex.
How should the dress code be applied? Employers are well-served to implement gender neutral dress codes that require employees to dress professionally or appropriately without designating attire associated with any sex unless there is a bona fide occupational need for such distinctions. The same reasoning in the bathroom case would apply to dress codes. Employers should not impose dress codes that require employees to dress as their birth-assigned sex.
How does the employer handle co-worker hostile comments? Because California law protects transgender employees from discrimination, employers must not permit co-workers to treat the transitioning employee in a hostile manner. Such treatment can create a hostile work environment and subject the employer and the harassing co-worker to liability. Being uncomfortable with the transition is no excuse. Likewise, vendors’ and customers’ hostile comments must not be tolerated. It is best to train supervisors to watch for inappropriate comments – for any reason – and to report them. Using hypotheticals based on real life issues is helpful in these trainings. Perhaps Caitlyn’s gift to employers is to provide an example that can be used to prepare supervisors and co-workers to accept the inevitable differences and changes that occur in the workplace.
Sharon Kirsch is an attorney with McManis Faulkner who leads the firm’s management-focused employment law practice. For more information, please visit mcmanislaw.com.