Loading...
HomeMy WebLinkAboutTransgender Employee Information From: aidreformaal(Tamailrnm on behalf of Kelley Winters To: Carson Taylor • Subject: Resending: Followup to our meeting-- Date: Thursday,April 10,2014 12:50:47 PM Attachments: 20 7404 BnzemanMSL JB.txt 201404 BnzemanMSl1B.ndf 70130317SHRMtransemnlnvment.ndf Hi Carson, I so enjoyed our time together this morning; thanks so much for taking time to meet and chat. I have attached my slides and raw presentation notes. Because of copyright issues on some of the images from the media,this is for private audiences and should not be made public. Feel free to share privately with other officials, as you see fit. 201404BozemanMSUB.txt- 9kb 201404BozemanMSUB.pdf- 2449kb I've also attached a white paper that was forwarded by Masen Davis, E.D. of the Transgender Law Center, and copied to Ilona Turner: Title VII and Transgender Employees: Top Five Questions By Natalie F. Hrubos 20130312SHRMtransemployment.pdf For an executive summary of the report by the The National Gay and Lesbian Task Force and the National Center for Transgender Equality, "Injustice at Every Turn: A Report of the National Transgender Discrimination Survey, see-- http://transenualitv_ora/PDFs/NTDS Exec Summarv.ndf Once again,these statistics, based on a broad survey of over 6000 transgender and transsexual individuals, are stunning and heartbreaking. For the complete report, see htto://www.thetaskforce.ora/reoorts and research/ntds For background on the defamation of Colleen Francis at Evergreen College, in Washington state (slide 20 of my presentation), see-- htto://www.transadvocate.com/colleen-francis-and-the-infamous-evergreen-state-collen_e- incident n 10765.htm It was authored by blogger and investigative researcher Cristan Williams, from Houston. She uses strong verbiage, but I've found her work to be thorough and reliable. She posts a direct phone interview with Todd Sprague, the Executive Director of College Relations, who stated: "Unfortunately many news reports and online commentaries have chosen to take a sensational, and often inaccurate, path in characterizing what has and has not happened at Evergreen." He went on to clarify, "On the occasion that sparked the media coverage, the individual in question was using the sauna, an area generally off limits to swim team members." Sprague also made it clear that this was "one incident that occurred in September 2012, not multiple incidents" and that Francis was "covered up with a towel on the way to the sauna and when leaving it. " As I understand the facts, Colleen and the College staff went to great lengths to ensure both her privacy and dignity and the comfort of other women using the athletic center. This is overwhelmingly typical of the hundreds and hundreds of trans women and men I have met over the years. In this case, two teenage girls from a swim team, using another part of the facility, violated policy and went into an off limits area to peek inside a private sauna to violate Colleen's privacy and that of her cisgender female friend. They told a swim team coach what they spied, who called the police, which was exploited by an anti-gay political group (Alliance Defending Freedom for Faith and Justice), which was sensationalized nationwide without fact-checking by Fox News, and ultimately landed in your Council meeting. The victim here was Colleen Francis. Jane Doe, our teenage girl from Colorado, was falsely accused of misconduct and "harassment" in a similar nationwide smear campaign, involving another anti-gay political group, Fox News and the Christian Broadcast Network. When they were caught in a deception, they had the gall to change their story to claim that the very presence of this young woman constituted criminal "harassment." As a consequence, she was publicly threatened with violence and death and had to be placed on a suicide watch. Finally, for the extraordinary story of Pamela Raintree, a transgender woman in Shreveport, La., who dared a Councilman to stone her to death in a public hearing, see httn://www.advocate.com/politics/transoender/2014/01/17/trans-woman-dares-bible-ouotinn- counci l ma n-stone-her-death Please feel free to contact me any time, if I can answer any questions or provide more information. Thank you so very much for listening to my concerns. Best regards, Kelley Kelley Winters, Ph.D. kelley@wintersgap.net cell 619 888 9120 605 N Date St, Truth or Consequences, NM 87901 09/04/2014 Gmail - SHRM Legal opinion -re Transgender Employees • be;LXk�ic SHRM Legal opinion -re Transgender Employees Masen Davis <masen@transgenderlawcenter.org> Fri, Apr 4, 2014 at 4:45 PM To: "kelley@gidreform.org" <kelley@gidreform.org> Cc: Ilona Turner<Ilona@transgenderlawcenter.org> Kelley—I hope you find this helpful.Good luck with your presentation in Bozeman,MT next week.I know you want to talk about Title VII a bit while you're there.Below is a piece from the Society of Human Resource Managers that may be helpful.In addition,I'm copying our legal director,Ilona Turner,in case she has additional info to share(she's an expert in Title VII). Best, Masen Title VII and Transgender Employees: Top Five Questions By Natalie F. Hrubos 3/12/2014 The Equal Employment Opportunity Commission (EEOC) has ruled that Title VII of the Civil Rights Act of 1964 bans discrimination based on transgender status. But what does this mean for employers? Let's say you're the HR director of a large company, and an employee in the sales department meets with you to discuss his her transition from man to woman. She explains that, starting next week, she will use the name Megan (instead of her legal name, Ryan) and she will dress in feminine attire at work. She asks that you talk with her supervisor, Kevin, about the transition and, in particular, her need to take two weeks off from work next month for medical reasons related to the transition. "Megan" tells you that she intends to use the women's restroom when she returns to work next week, but she is concerned about how co-workers and customers will react. Must Gender Transition Be Accommodated? Under the EEOC's ruling, employers are obligated to avoid discriminating against, harassing and retaliating against employees based on their gender identity or expression, change of sex and/or transgender status. Therefore, at a minimum, it would be unlawful to terminate Megan's employment because she is transgender. Additionally, companies must treat a transgender employees the same as they would other employees in comparable circumstances. For instance, if you would normally allow a non-transgender employee to take a two-week leave of absence for medical reasons, then denying Megan's request for the same two- https://mail.google.com/mail/u/0/h/p0udvtsh92e4/?&v=pt&ser=AIKcX55wH7LkR52LusiHjB4CGbt9mvmXwQ&msg=1452eeaecdcf717... 1/4 09/04/2014 Gmail- SHRM Legal opinion -re Transgender Employees week leave of absence for medical reasons related to her gender transition may be considered unlawful discrimination. Finally, fulfilling your company's obligation to maintain a workplace free of discrimination, harassment and retaliation based on transgender status may mean you have to make certain adjustments or accommodations that are not expressly required by law. Note, however,that applicable state and local laws may expressly require a reasonable accommodation. Should Other Employees Be Notified? That depends on a variety of factors. Generally, deciding if, when and how to notify employees about a co-worker's gender transition requires careful consideration of the dynamics and culture of the workplace and the personal preferences and privacy concerns of the transitioning individual. There is no one-size-fits-all approach. In some cases it isn't necessary or appropriate to tell workers about a colleague's gender transition. In others it is appropriate to meet with employees who are in regular contact with the transitioning individual, to ensure that they are aware of, and will comply with, your company's policies and practices relating to transgender employees. In the above situation, since Megan requested that you do so, it would certainly be right to hold such a meeting with her supervisor. Some employees who transition while employed prefer to take an active role in notifying their supervisors and co-workers; others prefer that an HR professional take the lead. Similarly, some transgender employees are comfortable sharing a lot of personal information with their colleagues, whereas others prefer to share little or no information. It is important to consider a transitioning worker's privacy in determining whom to notify, when to do so and how many details to provide. Before proceeding, it would be wise to talk with Megan about if and when she would like you to notify other employees about her transition and how much information she would like you to provide. What About Using the Women's Restroom? Is That Required Next Week? Yes. In fact, under the EEOC's ruling and certain state or local EEO laws, denying Megan access to the women's restroom could be considered evidence of discrimination or harassment based on her transgender status. In general, the best practice is to allow a transgender employee to use the restroom that corresponds with the person's gender identity and full-time gender presentation. Generally, it doesn't matter whether Megan has undergone any surgical treatment related to her gender or whether her co-workers, customers or clients regularly perceive her as a woman. No employer would require other employees to meet those types of standards before they use a particular restroom, so applying them to just transgender workers may be interpreted as unlawful discrimination. If Megan is more comfortable using a gender-neutral restroom, it is fine to direct her to one or make one accessible to her if that is a feasible option. It would be inappropriate, however, to require a transgender employee to use a gender-neutral restroom because of a co-worker's or customer's complaint about sharing a restroom with a transgender person. Can the Transgender Employee Be Disciplined for Violating the Dress Code? Usually, it is not OK to discipline a transgender employee for dressing based on his or her gender https://mail.google.com/mail/u/0/h/p0udvtsh92e4/?&v=pt&ser=AIKcX55wH7LkR52LusiHjB4CGbt9mvmXwQ&msg=1452eeaecdcf717... 2/4 09/04/2014 Gmail - SHRM Legal opinion -re Transgender Employees identity. Doing so may be considered unlawful discrimination under the EEOC's ruling and certain state or local EEO laws. Thus, Kevin should not discipline Megan simply because she starts dressing in feminine attire next week. Nevertheless, an employer is well within its right to have standards of professional appearance that pertain to all employees. Thus, if your company's dress code prohibits employees from wearing jeans in the office, but Megan does so, then it is appropriate to discipline her for violating the no-jeans policy, as long as others would be similarly disciplined. In general, whenever Kevin is enforcing your company's dress policy, it is important for him to treat Megan in the same way as he treats other women who report to him. This need for consistent treatment in accordance with gender identity should be a subject of discussion when you meet with Kevin to notify him of Megan's transition. If you have a gender-specific dress or appearance policy, consider making it gender neutral to minimize the risk of misapplication to transgender employees. Do You Recommend any Policy or Practice Changes? Yes. If your company's nondiscrimination and anti-harassment policies do not already include gender identity and gender expression as protected categories, consider adding them to make clear that your organization provides equal employment opportunities to transgender individuals. It is also important to review all workplace policies and practices to ensure that transgender individuals are treated in a manner that is consistent with their gender identity and expression (for example, appearance and dress codes). There are several other areas where businesses may want to change their policies and procedures. For instance, if your company conducts a background check as part of its pre-employment screening process, consider taking steps to ensure that any information disclosed about a candidate's gender history remains confidential and doesn't serve as the basis for adverse action. Additionally, it is often useful to develop written protocols and guidelines for management on appropriately addressing the needs of transgender employees, particularly those who transition while employed. It is important for management to understand and make accessible the process by which employees may promptly correct their administrative records, business cards, name badges, directories, e-mail addresses, and other systems or sources of identity information. Developing written protocols for management can be an effective way to consistently implement best practices throughout the company and to provide what is likely to be much-needed guidance to supervisors, who may not understand the needs of transgender employees. As a general practice, your company should incorporate gender identity and expression into any nondiscrimination and anti-harassment training it provides to new hires. It is critical to make clear at the start of the employment relationship that your company has a zero-tolerance policy for transphobic conduct. Another strategy for minimizing legal risk in this area is to provide annual training to management on, among other topics, identifying and handling workplace exchanges that may reflect bias against transgender employees. Such training would also serve as an opportunity to review with supervisors any written protocols on meeting the needs of transitioning employees. https://mail.google.tom/mail/u/0/h/poudvtsh92e4/?&v=pt&ser=AIKcX55wH7LkR52LusiHjB4CGbt9mvmXwQ&msg=1452eeaecdcf717.,. 3/4 09/04/2014 Gmail - SHRM Legal opinion -re Transgender Employees Natalie F. Hrubos is an attorney at Duane Morris in Philadelphia. https://mail.google.com/mail/u/O/h/pOudvtsh92e4/?&v=pt&ser=AIKcX55wH7LkR52LusiHjB4CGbt9mvmXwQ&msg=1452eeaecdcf717... 4/4