With our ever changing society, identities and the associated standards are constantly developing. Transgender and non-gender conforming workers are becoming more common, and new laws are being created to protect them. As a business owner, it’s important to stay on top of these. Let’s walk through some basic information about trans employees and related laws to make sure we aren’t only staying compliant, but that we can employ best practices to keep our workplaces inclusive.
Help! What Key Terms are Important With and For Transgender Employees?
While discussing transgender employees and peers, it’s important to know some key terms. We’re providing a short list to get you started.
TGNC: Transgender and gender non-conforming;
Cis/cisgender: A person whose gender aligns with their sex assigned at birth;
Trans/transgender: A person whose gender identity doesn’t align with their sex assigned at birth;
Non-binary: Someone who doesn’t identify as a man or a woman. They may identify as both, a combination, or as another gender entirely;
Deadname/deadnaming: The name someone was given at birth is no longer their preferred name; this is the action of calling someone by their previous, and now-non-preferred name;
Misgendering: Referring to someone as a gender that is incorrect or doesn’t align with their chosen gender;
Microaggression: A comment or action that subtly and often unintentionally expresses prejudice.
Experiences of TGNC Employees in New York State
In 2023, the New York Department of Labor conducted a study of transgender and gender non-conforming (TGNC) workers to see the experiences they had in the workforce. The research contained findings from public comment forums, interviews, focus groups, and other data. The data revealed some main themes.
The study concluded that employment discrimination based on gender identity is rampant in New York. Fifteen percent of respondents reported losing a job in their lifetime due to their gender identity or expression, with an additional 26% reporting that they were fired, denied a promotion, or denied a job they applied for in relation to their gender identity. Twenty-four percent reported workplace abuse like being forced to use a restroom that didn’t match their identity, being told to present or look a certain way, or having their transgender status disclosed to others without their permission.
The study also found that there was a lack of cultural competency regarding gender expression and identity, and the experiences and interactions that TGNC employees have with supervisors and coworkers show a lack of understanding and education. Many people struggle, not because they dislike trans individuals, but because they lack the experiences to respectfully engage with people who express gender differently than themselves.
This misalignment can lead cisgendered employees to unintentionally make TGNC coworkers feel uncomfortable, ashamed, or unsafe in their work environment.
What Laws Apply to the Treatment of Transgender Employees?
There are multiple sources of law that determine the standard of treatment for TGNC individuals. Let’s first look at the federal level. There’s no federal law that specifically bans discrimination based on gender identity in public accommodations; however, employers have a higher standard. Employers with 15 or more employees are prohibited by Title VII of the 1964 Civil Rights Act from discriminating on the basis of sex. In 2020, in Bostock v. Clayton County, the United States Supreme Court held that the term sex in Title VII includes sexual orientation and transgender status.
New York also has its own protections for TGNC people. First, the Human Rights Law provides that gender identity and expression is protected and that any hiring, firing, compensation, or conditions of employment can’t be impacted by one’s gender expression. In 2019, the Human Rights Law was amended with the Gender Expression Non-Discrimination Act (GENDA). This further cements New York’s commitment to transgender equality in the workplace.
What Actions are Prohibited under these Laws?
The federal laws about gender expression mean that under Title VII which applies nationwide, employers can’t discriminate on the basis of gender identity in hiring, promotions, pay, firing, and more. Also, it’s unlawful for an employer to create or tolerate harassment towards their TGNC employees. If the harassment is reported, the employer must take steps to stop it and prevent it in the future. It’s also important to note that preferences of clients or customers aren’t justifiable reasons for discriminating against TGNC employees.
Employers simply shouldn’t change the conditions of employment based on gender identity or gender expression – regardless of customer opinion.
Like federal law, New York prohibits employers from making employment decisions based on someone’s gender identity. New York has focused on and either prohibits or requires certain other actions in the workplace.
- An employer can’t ask about gender identity, sex assigned at birth, or medical history during a job interview. A
- An employer can’t disclose a person’s transgender status without their consent.
- An employer must allow employees to use restroom facilities that align with the person’s gender identity.
- An employer can’t require TGNC employees to have certain appearance standards based on sex stereotypes.
- An employer can’t misgender a TGNC person.
- If the misgendering is persistent or intentional, there could be a claim of discrimination. Let’s breakdown misgendering and other anti-trans behavior to understand where there is risk of noncompliance.
Now let’s break down misgendering and other anti-trans behaviors to understand where the noncompliance risks lie.
What are Some Common Workplace Acts of Anti-Trans Behavior?
One of the most common discriminatory acts is misgendering a TGNC individual. If a non-binary person presents as more feminine, coworkers and supervisors may make the mistake of using she/her pronouns instead of they/them, as the person’s requested.
Of course, simple mistakes are bound to happen; what’s key is making sure they remain mistakes and don’t become repetitive or purposeful harms.
Similarly, it’s problematic if a TGNC employees is deadnamed. Remembering our definitions, if a trans employee stops using the name given to them at birth (their legal name), it’s important for a workplace to honor that. This is especially important for owners, hiring managers and HR representatives. It’s these management-level folks who often have access to legal documentation that may not reflect the employee’s preferred name.
It’s important to ask the employee what they want to be called and make sure to use that name 100% of the time, whether in conversation, on name tags, or on any other resources around the workplace.
Microaggressions are small, subtle comments or actions that convey negative messages to or about TGNC people. Sometimes they’re unintentional or sometimes they’re deemed harmless. However, any actions that make TGNC peers feel uncomfortable or unsafe aren’t harmless.
For example, what if a female coworker telling a transgender man that she also was a tomboy as a kid? Although this message may have been an attempt to make a connection, what it really does is tell her trans coworker that he’s in a phase or that he really isn’t a man. It equates his identity to a young girl’s dressing more masculine. This is an example of a microaggression. Although it seems small, it can completely invalidate someone’s identity. We should want to avoid this as much as we can.
Unfortunately, it isn’t always simple misunderstandings that lead to anti-trans behavior. Sometimes, coworkers and supervisors may be intolerant or hateful towards TGNC people. This often surfaces as jokes, ridicule, or – sadly – even violence. On the less-extreme side, it can be calling trans people “it” or “mentally ill,” and in extreme cases, verbally or physically assaulting trans workers.
Maintaining a no-tolerance policy for anti-trans behaviors isn’t only for legal compliance, but it also helps to ensure safety for all employees.
Why Should My Company Promote Trans Wellbeing in the Workplace?
Besides compliance and physical safety, there are many reasons to protect your TGNC workers. The Harvard Business Review found that a lack of trans-specific policies led to higher turnover, decreased engagement and productivity, and of course, possible litigation. A March 2012 report by the Center for American Progress estimated that US companies lose approximately $64 billion annually as a result of replacing employees who left due to discrimination, many being trans or gender non-conforming.
How Can We Maintain an Inclusive Environment?
Now that we know legal compliance requires inclusivity, let’s discuss some ways to do that in the workplace. We know running a business is challenging, and we’re always looking for ways to minimize or eliminate risk – this is one way to do so.
- Revise Internal Documents: One essential piece of becoming and/or remaining an inclusive workplace is revising internal documents to include preferred names and pronouns. This signals to applicants and current employees that you are tolerant and supportive of non-traditional gender identities.
- Display Pronouns: Often, trans and gender non-conforming individuals are targeted because they voice their pronouns more than their cisgender counterparts. By creating an environment where announcing pronouns is normalized, you can limit the vulnerability of those who have a need to vocalize them. You can do this on email signatures, video calls, or while introducing yourself. Create a workplace that doesn’t fear open conversations about gender preferences.
- Create Gender Neutral Restrooms: The law requires that TGNC people be allowed to use whichever restroom corresponds with their gender identity; however, an additional way to promote inclusivity is by offering single-stall gender neutral bathrooms. This provides a safe restroom for TGNC employees while making sure others also feel comfortable in the restroom space. This is one way to encourage your whole company to feel at home in your workplace.
- Provide Support for Transitioning Employees: Creating a safe framework for transitioning employees is vital to the inclusivity of your company. The fear of retaliation or harassment is very real for TGNC peers. By reiterating the protections that your company and the law offers, they will be more comfortable being their true selves. In your workplace, you can easily provide information on non-discrimination laws and resources in your local area.
But What if Other Employees are Uneducated or Resistant to TGNC People?
Whether it’s their lack of understanding, a refusal of understanding, or some other mindset like a belief system, religion, or upbringing, one thing is clear: employers have the responsibility to stop existing issues and prevent future harassment of trans workers. So what can you do to help other coworkers be inclusive of trans or gender non-confirming peers?
- Education: First, you can provide gender awareness training to your company. Most intolerance of trans people is from a lack of understanding or exposure. By mandating training about working respectfully with LGBTQ+ folks, you can break down the first layer of misunderstanding. It’s important that you don’t place the burden of educating your workers on the TGNC individuals in your business. Find or develop training [we can help!] that promotes acceptance but doesn’t put unnecessary pressure on the gender non-conforming minority. They have enough on their plate by simply existing without having to educate those around them.
- Written Policies: Writing policies that clearly require the use of proper pronouns and preferred names can prepare new or existing coworkers to know that your company is serious about its duty to protect TGNC people. By making it clear within job expectations that they must respect others, intolerant employees will come to understand their responsibility and your company’s obligations under the law. It will ensure that there’s no surprise when you defend your gender non-conforming workers from harassment or discrimination. By openly demonstrating zero tolerance for non-inclusive behavior, you’re less likely to see casual anti-trans behavior.
- Take Small, Understandable Steps: Beyond training, you can take the disconnect between your TGNC employees and their uneducated peers and bridge it by breaking down inclusivity into smaller steps. For example, if you have a non-binary employee named Sam who uses they/them pronouns and an older employee who can’t understand using they/them as singular pronouns, you can encourage the older employee to simply use Sam’s name instead. You could say something like “Sam is going to get Sam’s laptop before the meeting.” This ensures that Sam doesn’t feel invalidated, while taking smaller steps to educate the employee who’s uncomfortable or uneducated.
Other Resources for Gender Awareness Trainings
And Finally. . . .
As well-meaning as you are, the constantly-changing laws about discrimination and gender identity can sometimes be difficult to follow.
If you ever have questions about your compliance obligations regarding trans and gender non-conforming employees, reach out to The Coppola Firm at 716.839.9700 or info@coppolalegal.com.
