Equality advocates continue to push for the passage of the Employment Non-Discrimination Act, a proposed federal bill that would prohibit discrimination against employees on the basis of sexual orientation or gender identity. Currently, only 15 states and the District of Columbia have policies that protect against both sexual orientation and gender identity discrimination in employment. Many corporations have taken the lead in the fight for employment equality by instituting their own inclusive workplace policies, including protections for transgender employees. More are joining the ranks as the Human Rights Campaign’s annual Corporate Equality Index continues to have an effect on workplace equality.
Beginning in 2012, companies striving to earn or maintain a perfect CEI rating must have an equal employment opportunity policy that includes both sexual orientation and gender identity or expression. According to HRC, the new criteria will go into effect for the CEI 2012 Survey and Report issued in calendar year 2011. The policy change reflects a positive shift in attitude toward the transgender community, whose rights have often been neglected in the push for lesbian and gay rights.
While some businesses are starting to implement transgender workplace protections, most continue to remain unaware of the challenges facing transgender employees. Consequently, the workplace can be a difficult environment for transgender employees, regardless of whether or not a company includes “gender identity or expression” in its nondiscrimination or equal employment opportunity policy.
As a result, transgender employees often face discrimination in the workplace. In a study done by Jaime E. Grant on transgender issues, a staggering 90 percent of transgender respondents claimed they had faced some kind of discrimination while at work. This kind of statistic only serves to prove how important it is for companies to take the time to educate their employees about their company’s nondiscrimination policy and ultimately create a comfortable work environment for everyone. In addition to educating the workforce, companies must also make reasonable accommodations for their transgender employees or those beginning the transition process. Particular transgender issues that commonly arise in the workplace include health plans, dress codes and restroom access.
Today, most employers offer some form of health-benefit plan. According to the Human Rights Campaign the number of companies offering plans to domestic partners has increased about 50 percent since 1999. The majority of these health-insurance plans, however, fail to provide essential coverage for gender-identity treatment, such as sex affirmation or reassignment. It is important to note that oftentimes, insurance companies fail to provide this benefit, and therefore the employer is not able to offer it. The more insurance companies that offer this coverage, the easier it will be for employers to include it in their health-benefits packages. The reason for such discrimination in health insurance stems from the misguided stigma that these procedures are not medically necessary. Working to erase this stigma, a few companies are beginning to include transgender treatments and procedures into their employer-provided healthcare plans. According to HRC, 8 percent of Fortune 500 companies now offer transgender-inclusive health benefits, up from none in 2004. Although not astounding, this increasing trend is noteworthy because it indicates businesses are finally beginning to address the discrimination in employee health-care coverage.
The existence and enforcement of dress code is another common transgender workplace issue. Corporate dress codes often include separate gender provisions for males and females. Although companies have the right to establish and enforce reasonable policies, gender-specific dress codes are based on gender stereotypes and are oftentimes discriminatory to employees who do not conform to cultural expectations or who do not align with historical gender norms. Therefore, in order to eradicate transgender discrimination, companies should allow transgender employees to dress in accordance with their gender presentation and/or modify dress codes to exclude gender-specific language.
Arguably the most frequent problem facing transgender employees concerns restroom access. Transgender employees’ work productivity suffers when continuously confronted or questioned about which gender restroom they should use. Hence, an employer should allow a transgender employee to use the restroom that corresponds to his or her gender identity, regardless of whether or not the employee has undergone sex-reassignment surgery. As expected, some coworkers may express concerns or be uncomfortable by a transgender employee’s use of the same restroom. Companies looking for an amicable solution for all employees should install and make available a single-occupancy restroom facility. The U.S. Department of Labor’s Occupational Safety and Health Administration forbids employers from imposing unreasonable restrictions on employee use of restroom facilities. Thus, if providing a single-occupancy facility is not a viable option, companies should pronounce that coworkers who are uncomfortable by a transgender employee’s use of the same restroom simply use another facility.
Instituting policies that prevent gender-identity discrimination in employment is just one part of the equality equation. Companies must ensure transgender employees feel comfortable and safe in the workplace. By implementing such practices and increasing diversity, companies are not only demonstrating they are interested in the welfare of their employees, they also are allowing themselves to attract and retain many qualified employees.
Angela D. Giampolo, principal of Giampolo Law Group, maintains offices in Pennsylvania and New Jersey and specializes in LGBT law, business law, real-estate law and civil rights. Her website iswww.giampololaw.com
and she maintains two blogs,www.phillygaylawyer.com
andwww.lifeinhouse.com. Send Angela your legal questions atangela@giampololaw.com.
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