How can Workplaces be Made Inclusive for Transgender Workers?

The transgender movement greatly complicates workplace interactions and policies. What once was a generally objective standard for worker behavior and acceptable use of common areas, such as restrooms and changing areas, has become very subjective. Gender identity now matters as much as community standards for gender-specific behaviors. Even state and federal governments say so, and employers who violate anti-discrimination laws could face stiff penalties.

When it comes to the workplace and workplace culture, transgender workers are a relatively new wrinkle in the organizational fabric. Even organizations that have a very inclusive environment and culture for lesbian, gay, and bisexual workers could struggle with fully lawful inclusion of transgender workers.

More than a quarter of all workers recently polled and who identify as transgender say they lost a job because of anti-transgender bias in the workplace. Three-fourths of transexual workers say they experienced workplace discrimination as a result of their transgendered status. Many say they change jobs to either avoid the discrimination that they encounter or to prevent it from occurring.

When a transgender worker changes jobs due to a discriminatory and hostile work environment, the employer loses someone who was hired based on his or her merits. Losing good talent because of a choice in gender hurts employers and weakens the workplace culture.

Importance of an Inclusive Work Environment

An inclusive work environment gives you the chance to work effectively while maintaining a general sense of mutual respect. For transgender workers, traditional gender roles and references, such as pink representing women and blue men when it comes to clothing and gender-specific color coding, are problematic. There is no biological imperative that directly connects female to pink and male to blue. It is learned societal roles that produce such gender-specific references.

That does not mean the use of pink or blue automatically rises to the level of a discriminatory action against transgender workers. Many might choose to adopt such gender-based coding as a way of affirming their preferred choice within community norms. Presenting items to a transgender worker that is meant to be gender-specific but is opposite of the worker’s chosen gender might trigger a discrimination violation.

Many transgender workers likewise say that they feel devalued and at times have taken steps to hide their chosen gender. Adopting traditional modes of clothing and gender behaviors while at work are common ways in which transgender workers generally conceal their gender preference. Although that is a choice and does not rise to the level of discrimination, it does show a type of non-inclusive workplace culture that could create a potential hostile work environment for transgender workers.

Federal and State Protections are Growing for Transgender Workers

The U.S. Equal Employment Opportunity Commission (EEOC) says it is illegal to discriminate against someone because of sexual orientation or gender. That includes those who change their respective genders and become transgender. The EEOC generally has upheld the rights of transgender workers over the past decade, and the U.S. Supreme Court gave that a big boost with a landmark ruling in 2020.

The Supreme Court in its Bostock v. Clayton County decision issued in June 2020 says federal law bans employment discrimination against transgender people. The court ruled the same federal laws that protect other workers against workplace and employment discrimination also apply to transgender workers and those seeking jobs. The ruling could help transgender workers to gain necessary workplace protections while enabling them to excel because of individual experience, skills, and expertise.

If you are a transgender worker or manager, the EEOC fully applies the Supreme Court’s ruling in its efforts to ensure fairness and fight discrimination against you and other transgender workers. Gender-identity discrimination is banned by federal law. It also is banned at the state level in New Jersey.

The New Jersey Law Against Discrimination (NJLAD) includes protections for workers based on gender identity or expression. The law defines gender identity as the individual’s perceived gender rather than an assigned gender based on sex. That is why the term is transgender rather than transsexual. New Jersey’s anti-discrimination law further describes gender expression as the worker’s external appearance, including his or her clothing, hairstyle, behavior, and voice.

Pay Gap Affects Most Transgender Workers

The Bostock v. Clayton County ruling comes at a time when transgender workers generally experience a great deal of employment discrimination. Among the most telling is a pay gap that generally applies to transgender workers.

The gender pay gap between men and women has been a longtime issue in workplaces across the nation. In general, women traditionally are paid significantly less than male counterparts with about the same levels of experience and ability. In a strangely affirming way, that pay gap applies to workers when they change gender from male to female.

A 2011 survey conducted by the Sherbourne Health Centre in Toronto suggests career opportunities as well as pay greatly lag for transgender people. More than 70 percent said they had at least some post-secondary education, but only 37 percent were employed full time. More shockingly, about half said they earned $15,000 or less annually.

Studies also indicate transgender workers earn up to 30 percent less than other workers doing the same task. With such a massive pay gap affecting transgender workers, the potential for pay-based discrimination becomes much more likely to occur. It is just one of many issues still fought and decided in courts throughout New Jersey and the United States.

Transgender Workplace Issues Continually Evolve

With transgender workplace environments being among the more recent innovations in anti-discrimination laws and enforcement, many issues remain largely unsolved but are evolving. The notions of naturally assigned gender versus gender choice could create workplace issues if a transgender worker prefers a particular pronoun, such as she/her rather than he/him.

Something as seemingly simple as pronoun usage becomes problematic when transgender workers prefer specific pronouns. A physical education teacher in Virginia recently was suspended from his job for telling the school board he would not use preferred pronouns for transgender students. A subsequent lawsuit forced the school district to reinstate the teacher because of unlawful retaliation because the teacher expressed his concerns regarding district policy.

Similarly, when transgender individuals use public or workplace restrooms with traditional men/women or boys/girls designations, lawsuits have been filed and won. A good example is when a woman or a teen girl uses a restroom designated for women, and a transgender who identifies as female uses that restroom at the same time.

Many biological women are very apprehensive about someone with the physical build of a man using a restroom designated for women. A federal court in Illinois recently issued a unanimous ruling against a large retailer that banned a transgender worker from using the women’s restroom. The transgender worker prevailed based on a lack of accommodation. The court also rejected the retailer’s argument that gender is determined at birth.

The cases regarding pronoun and restroom usage are good examples of how transgender worker issues are evolving with federal courts often making final decisions. Federal and New Jersey anti-discrimination laws fully affirm transgender worker rights, but there clearly are limitations.

With many cases winding up in federal courts, the cost to litigate could be high for transgender workers who are defending their rights as well as employers. And the time to litigate such cases could extend over many years as they make their way through respective state and federal court systems.

Ultimately, more defined policies that are inclusive of transgender workers while also protecting the rights and considerations of all workers should help to put much of the legal issues to rest. Until that time arrives, more cases are certain to be filed and argued at the state and federal levels.

Cherry Hill Transgender Discrimination Lawyers at Sidney L. Gold & Associates, P.C., Help to Fight Transgender Discrimination

An inclusive work environment enables transgender workers and others to do their best and excel in the workplace. Unfortunately, discrimination against transgender workers remains and manifests itself in many ways. If you or someone you know is experiencing workplace discrimination because of a transgender status, state and federal laws might be enough to stop it. You can get help from the Cherry Hill transgender discrimination lawyers at Sidney L. Gold & Associates, P.C. Call us today at 215-569-1999 or contact us online for a free consultation. Located in Pennsauken, New Jersey, and Philadelphia, we serve clients in Cherry Hill, Haddonfield, Marlton, Moorestown, Mount Laurel, New Jersey, and South Jersey.