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How should we handle worker’s upcoming transgender transformation?

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in Discrimination and Harassment,Human Resources

Q. We have a male employee in our accounting department. He recently told us that he plans to start presenting himself as female and is thinking of undergoing surgery to transform to a female. We think we will have employees who are really uncomfortable with this situation, so we are wondering if we can terminate our accounting employee or if this might get us into trouble?

A. You should proceed carefully or you might face a discrimination claim from your transgender employee. To date, federal employment discrimination law has not expressly prohibited sexual orientation or transgender status discrimination. Increasingly, however, some states have such laws. In addition, the EEOC takes the position that sexual orientation or transgender discrimination may violate the traditional prohibition under federal law on sex discrimination.

The EEOC views the law against sex discrimination as prohibiting discrimination based on an individual not meeting gender-based stereotypes or expectations. Based on this position, it has brought several lawsuits against employers for firing transgender employees that were transitioning from one sex to another. Religious institutions have some discrimination law exemptions that other employers do not have, but you don’t mention being a religious organization. In the end, you should consult with legal counsel before acting and likely face risks that you will need to consider before acting.

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Megan L. Anderson is an attorney with Gray Plant Mooty’s Employment Law Practice Group in Minneapolis. Concentrating her practice in employment law counseling and litigation, she ­regularly advises employers and provides training on a variety of employment law issues. Contact her at megan.anderson@gpmlaw.com or (612) 632-3004.

{ 15 comments… read them below or add one }

Angela November 24, 2014 at 10:55 am

Nice comments above, especially Sophia.
I fully agree, time to educate the people, starting with the person asking the question.
The trans people I know are just normal people like everyone else, and after transition they will definitely be much happier in life, which might also have a very positive rrflection on how they are at work.

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Julia Madid November 23, 2014 at 6:25 pm

I am utterly astounded by the way this question has been phrased. It demonstrates such a complete lack of knowledge, humanity and general decency. If you, the writer of this question, are an HR person, how can you possibly believe in your role as a positive contributor to the wellbeing of your people?

Educate yourself, your HR team, and your workforce. It’s not hard, but it does require you to open your mind, and frankly, as an HR person, which I shall continue to assume you are, if your group is not open to diversity, you are doing a great disservice to your company.

I have educated two HR departments in two separate companies in my sector. Transgender people may present a small challenge to HR, but it’s only a problem if you see it as being one. And as a company which I assume might perhaps care just a little about its employees, don’t you owe it to every employee to deal with their issues in a caring and intelligent way?

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Jon Everingham November 23, 2014 at 9:27 am

You use an interesting turn of phrase here “We THINK we will have employees who are really uncomfortable with this situation”. Therefore no employees have suggested that they are uncomfortable with the situation at all, I can only conclude from this that it should read “I AM uncomfortable with this situation”.
You could always run a trans* awareness course for yourself and your employees to support your worker in this very difficult stage of their life – in my experience most people are very accepting trans* people.

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Sara Pleger November 23, 2014 at 4:37 am

Those who ” don’t feel comfortable ” are those who are not team players. It’s a simple economic reflection. You hired this person because he/she fits into the team, because he/she is qualified for the job, because he/she will give you a positive ” return on invest “. So where is the problem ? Assisting him/her in the transition will be rewarding for you on many levels. First of all you will have an employee deeply dedicated to you. If somebody feels ” uncomfortable to the extent he can’t no longer work effectively ” this person is to be removed from the team, as he splits up a working team. This person will sooner or later feel ” uncomfortable ” about another subject, whatever it may be. Your ROI lies with the transitionning employee, not with the ” uncomfortable ” one, as the latter will always be subject of trouble, aka as negative ROI. And still for economic reasons: you will be positively perceived from the outside. Can you live with a negative perception ?

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robyn Edwards November 22, 2014 at 9:45 pm

is this company nuts? They don’t realize if they “invest”, and I don’t mean financial investment, in this employee by simply applying inclusiveness and equality, they will have a dedicated employee for life. It is hard for a Trans Person to change jobs. Discrimination can be subtle. I have seen terms such as”sorry, you are too qualified for the position” applied… First hand

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Zoe Brain November 22, 2014 at 9:15 pm

Perhaps this might reduce your discomfort, and explain this unusual situation:

Sexual Hormones and the Brain: An Essential Alliance for Sexual Identity and Sexual Orientation Garcia-Falgueras A, Swaab DF Endocr Dev. 2010;17:22-35
The fetal brain develops during the intrauterine period in the male direction through a direct action of testosterone on the developing nerve cells, or in the female direction through the absence of this hormone surge. In this way, our gender identity (the conviction of belonging to the male or female gender) and sexual orientation are programmed or organized into our brain structures when we are still in the womb. However, since sexual differentiation of the genitals takes place in the first two months of pregnancy and sexual differentiation of the brain starts in the second half of pregnancy, these two processes can be influenced independently, which may result in extreme cases in trans-sexuality. This also means that in the event of ambiguous sex at birth, the degree of masculinization of the genitals may not reflect the degree of masculinization of the brain. There is no indication that social environment after birth has an effect on gender identity or sexual orientation.

A sex difference in the human brain and its relation to transsexuality. by Zhou et al Nature (1995) 378:68–70.
Our study is the first to show a female brain structure in genetically male transsexuals and supports the hypothesis that gender identity develops as a result of an interaction between the developing brain and sex hormones

You do not have a “male employee”. You have an anatomically female employee who looks superficially male. Once she gets that corrected, statistics have shown she’s likely to be far more valuable and productive.

Perhaps a short educational program on the issue for employees and management may be better than running the risk of legal action for discrimination, and consequent really bad PR regardless of outcome.

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dmadson November 22, 2014 at 9:08 pm

It’s high time we stop blaming an LGBT person for making other people uncomfortable. That is on them, not the transgender person, who is just being who she is. I support the other commentators. This is a great teaching moment to help bring your workforce into the 21st Century. If you want to excel, don’t label yourself to future employees as someone who is intolerant of difference. It’s not good for your business. Outside of the law, there are a lot of online resources for companies who choose to support their trans employees during their transition (in short, you can be an ally, not an a-hole). Just a thought. HRC has some best practices andsuggested policies if you choose to take the high road. http://www.hrc.org/resources/entry/transgender-inclusion-in-the-workplace-recommended-policies-and-practices

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Sophia De Tricht November 22, 2014 at 5:57 pm

First, I am not an attorney, but I am very familiar with the laws regarding this issue. I am a manager and a businesswoman. As an employer in the US at this point in history, you need to be aware of some things:

1) The EEOC has, since 2004 (Macy v. Holder), considered transgender identity as protected under discrimination by sex, Title VII of the Civil Rights Act of 1964. It has been, until recently, prohibitively expensive for an individual to pursue an EEOC claim. That’s changed recently. Currently, the EEOC’s docket is quite full of transgender discrimination claims. Many of the claims are questionable. If you fire your employee and she decides to pursue an EEOC claim, it would be a very simple matter to prove that her status as a transgender woman was the reason. You stand to lose big.

2) the President has signed EO 13672, which bans discrimination against gay and transgender employees by both the federal government and any government contractors. So if you do now or ever wish to conduct business with the federal government at any point in the future, I’d rethink firing that individual.

3) You are professionals engaged in business. Every one of your company’s employees have a job to do. If there are elements of your workforce that are so distracted by a coworker’s transition that it’s a problem, this is indicative of a lack of professionalism in your workforce. The truth is that allowing this person to transition unmolested by the company or by her coworkers will boost her productivity and her work life satisfaction.

Short version: you should tell anyone who has a problem that they are being paid to do a job and that they should do it and not concern themselves with things that are exactly none of their business. You might also consider coming down hard on harassment that this might cause, because when it comes down to “hostile work environment” claims, the company is liable for any harassment caused by employees, contractors, or customers if it can be proven (and it can) that you did or should have known about it.

Short short version: Keep her and handle your people. Tell them to grow up and do their jobs.

In the final analysis, it will almost certainly be cheaper to actually manage your workforce than suffer the consequences of getting rid of an element that *you* feel *might* be potentially disruptive.

References:
http://www.whitehouse.gov/the-press-office/2014/07/21/executive-order-further-amendments-executive-order-11478-equal-employmen

http://www.eeoc.gov/decisions/0120120821%20Macy%20v%20DOJ%20ATF.txt

http://www.eeoc.gov/laws/types/harassment.cfm

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Deborah Miller November 22, 2014 at 6:20 pm

Extremely well said Sophia!

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Jeff Robison November 22, 2014 at 5:53 pm

There may be municipal ordinances which also prohibit a discharge.

When in doubt, take the high road. Also consider the inefficiency of a loss of a trained employee for reasons which have nothing to do with job performance.

The fact of the matter is the employee is transitioning because she has to. If she didn’t it is likely she would harm herself. Really. Just ask. Consider if your company wants to be complicit in that event.

Finally inform your employees before the transition. Educate them. The National Center for Transgender Equality has resources to educate your staff. Make them aware. Make them travel the high road too.

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Valerie Larkin November 22, 2014 at 4:36 pm

i work for the Federal government, and my employer was totally supportive of my transition. All of my co-workers have treated me with respect. I am so fortunate to work where I do, as opposed to an organization run by a bigot like this person. And yes; if you’re asking for advice as to whether you can fire an employee just because she is transgender, you are a bigot.

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Steph van Schalkwyk November 22, 2014 at 4:07 pm

Good g_d!
Frankly, I am astounded that you would even consider terminating this employee at this, probably the most important, stage of her life. Your reason, “other employees being uncomfortable”, is so paltry, it would shame even the most maladjusted HR manager.
Have you considered educating the other “uncomfortable” people in the office? Being T* is not a “lifestyle choice”, it is not “against nature”, it is a something with which a person is born. There is no “choice” in the matter.
As some film star famously said “there is no ‘gay panic’. There is only homophobia, and you’re an asshole” or words to that effect.
Thank g_d I don’t have to work at your establishment.

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Vanessa Sheridan November 22, 2014 at 4:04 pm

“We think we will have employees who are really uncomfortable with this situation, so we are wondering if we can terminate our accounting employee or if this might get us into trouble?” So, because you think someone might be uncomfortable with a coworker’s gender realignment, you’d like to terminate the transgender employee? Really? Someone MIGHT be uncomfortable and so you want to simply throw your transgender employee under the bus and take away their livelihood? Wow, nice organization you have there. Way to support your people. Way to be a decent human being. Not. Here’s a suggestion: instead of acting like you’re being exposed to ebola, try behaving like a professional and a reasonable person. You might also want to try complying with the law, especially since the federal EEOC is currently suing two private companies for discriminating against transgender employees. The world is changing and transgender people aren’t hiding anymore. A gender realignment is not a scandal–it’s a fact of life in business today. Get used to it, educate yourself, and stop trying to terminate anyone who doesn’t fit into your definition of “normal.”

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Toni Leigh November 22, 2014 at 3:54 pm

I am trans in the UK and I have just got a job as my correct gender.

The company concerned, who are very successful, cared only about two things. Could I do the job and would I fit into the team.

I suggest that as an employer you follow this lead.

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Deborah Miller November 22, 2014 at 3:38 pm

Let’s be clear here. “Uncomfortable” really means prejudiced. How would your organization handle employees that were “uncomfortable” working with women, people of color, etc.? Same thing. Frankly, if this employee does her job well, isn’t a waste of your company’s resources to terminate her because of other employee’s bias? I am an attorney and I believe Ms. Anderson’s response is correct. I will add that depending on the jurisdiction where your company is located, you can be GUARANTEED of a discrimination suit. It will be well-deserved if you terminate this employee for this reason alone.

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