Sexual Harassment and the Transgender Community
Introduction to Sexual Harassment and the Transgender Community
Just recently the State of North Carolina passed a controversial law requiring individuals to use the bathroom facility that corresponds to the sex identified on their birth certificates. This has caused no shortage of outrage from the LGBT community, of sexual harassment and the transgender community have described the law as discriminatory and called for its repeal. Adding fuel to the fire, this week the U.S. Department of Justice sent a sternly-worded letter to the North Carolina government, indicating that the “bathroom bill” violates the civil rights of transgender individuals.
It bears mentioning that private employers can also violate a transgender employee’s rights and open themselves up to a claim of discrimination. Employers should inform themselves as soon as possible about how a transgender employee’s rights may be infringed upon and what workplace policies they need to change as a result.
Ways to Discriminate Against a Transgender Employee
With few exceptions, most employers probably do not plan or intend to violate a transgender worker’s civil rights. Nevertheless, employers cannot escape liability for violating a transgender person’s rights by simply claiming ignorance of changes in employment law that are being made. For example, employers can violate a transgender employee’s rights by:
- Failing to provide adequate restroom facilities for transgender employees and/or adhering to discriminatory restroom policies. It can be a violation of a transgender employee’s civil rights to insist that a transgender employee use a bathroom for a gender that the employee does not identify with. For example, if a transgender employee indicates that she identifies as a woman, it may be a violation of her civil rights to insist she uses a male restroom because she was born as a male.
- Failing to make reasonable accommodations. Some transgender employees may not feel comfortable using a male or a female restroom and may request instead a single-occupancy unisex bathroom. If creating such a facility would not impose an undue hardship on the employer, the employer must do so or else risk a discrimination claim or lawsuit. Even if an employer crafts such a facility without being asked to do so by a transgender employee, it may violate such an employee’s rights by requiring the employee to use the facility as opposed to a restroom that he or she feels more comfortable using.
- Failing to address harassment or discrimination. Just as employers must educate employees about recognizing and avoiding sexual discrimination or other forms of harassment, employers must also take measures to prevent and address any discrimination or harassment directed toward transgender individuals. Even if the employer itself does not discriminate or harass a transgender employer, permitting a hostile work environment to exist can result in the employer being liable in a discrimination claim or suit.
- Failing to properly address the transgender employee. Employers and coworkers should be cognizant and address transgender employees by the pronoun they identify with, not the one that corresponds with their sex at birth. For instance, if the employee’s sex at birth was identified as “male” but she identifies with the female gender and wishes to be referred to as “she” or “her,” it can be discriminatory or harassing if employers (or coworkers) refer to her as “he” or “him.”
New Situations but Enduring Principles
While transgender rights may be a relatively new topic with which employers must grapple, the principles applicable to this area are the same principles applicable to sex discrimination, racial discrimination, and/or harassment. So long as employers remember to treat their employees with dignity and respect and not to engage in or tolerate behavior that demeans, harasses, or discriminates one employee or a similarly-situated group of employees, employers can avoid many discrimination claims and/or lawsuits.