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More Employers Broadening Nondiscrimination Policies to Include Transgender Workers

July 1, 2006
Related Topics: Miscellaneous Legal Issues, Discrimination and EEOC Compliance, Featured Article
Last year, Chevron Corp. published what may be one of the more remarkable documents in the 127-year history of the multinational energy giant. Titled "LGB&T: Transgender @ Chevron," it was intended to "help foster dialogue and understanding of transgender issues in the workplace," even addressing which restroom an employee transitioning from one gender to another should use.

    Chevron is now one of more than 300 U.S. companies with a nondiscrimination policy that includes provisions for gender identity, in addition to the more common policy for lesbian, gay and bisexual employees.

    The company expected that the new policy would make a lot of employees uncomfortable, says Carole Young, general manager of global diversity at Chevron. But she explains, "These are issues we have to deal with as a company. ... It’s part of the process of having an inclusive work environment."

    Nationally, transgender people—those whose biological gender differs from the gender with which they identify—represent only a small fraction of 1 percent of the population. Still, there have been several moves recently toward protecting them from workplace discrimination.

    Earlier this year, Washington became the eighth state to explicitly prohibit bias against transgender people, and the U.S. Postal Service also has joined the list of anti-discrimination employers. In the courts, the U.S. Supreme Court refused to hear an appeal of a $320,000 jury award to a Cincinnati police officer who was demoted while he was changing his sex from male to female. Trial court judges in Pennsylvania and Washington, D.C., have found that employers can be sued under Title VII of the 1964 Civil Rights Act for discriminating on the basis of gender identity.

    Tolerance of transgender people in the workplace, however, still appears to be the exception rather than the rule.

    "We still get calls from transgender people from all over the country saying they are being harassed," says Shannon Minter, legal director at the National Center for Lesbian Rights. More than 24 percent of nearly 200 transgender people recently surveyed in the famously tolerant San Francisco area reported being sexually harassed at work. More than 14 percent said they had encountered restroom-related discrimination.

    "When you are transgender, discrimination can unfortunately come in many blatant and subtle forms," concluded the Transgender Law Center, which conducted the survey.

    California amended its anti-bias law to include gender identity in 2003. In March, Dan­ielle Ryan, a transgender employee of Parsons Brinckerhoff in Sacramento, sued the engineering firm, alleging, among other things, that a supervisor sent her home the first day she wore a dress to work. Another manager allegedly called her "Klinger," after the cross-dressing character in the television series "M.A.S.H."

    "Transgenders evoke these visceral reactions," says Heather Borlase, a San Francisco attorney who recently represented a transgender client in a bias suit against the University of California, San Francisco. "Many people just don’t accept them as people with basic rights."

"Diversity leaders"
   Acceptance of transgender people is a relatively novel phenomenon. Through the 1990s, few employers had human resources policies covering them. The courts were uniformly hostile toward recognizing them as protected under the federal ban against discrimination "because of sex." Congress "never considered nor intended that [Title VII] apply to anything other than the traditional concept of sex," the 7th U.S. Circuit Court of Appeals in Chicago said in 1984.

    But in the early part of this decade, the Human Rights Campaign, the country’s largest gay and lesbian advocacy group, began lobbying Fortune 500 companies to adopt transgender-inclusive policies. Those that did got a boost to their rating in the HRC’s closely watched Corporate Equality Index. In 2001, American Airlines, which had a transsexual employee, became one of the first employers to develop guidelines on how to handle the gender transition process.

    Since 2002, the number of Fortune 500 companies with transgender HR policies has more than quintupled, from 15 to 82, representing nearly one-quarter of all employers with such policies. Among those on the list are such corporate behemoths as Coca-Cola, Ford, IBM and Microsoft.

    "These are diversity leaders," says Jillian T. Weiss, a professor of law and society at Ramapo College in New Jersey who consults with companies on transgender issues. "They want to create an environment in which all employees feel welcome and customers feel they’re dealing with a progressive organization."

    "If companies want to be competitive, they truly have to be sensitive to the issue of diversity to recruit from a shrinking [labor] pool," she adds. And being sensitive to transgender people is "really an indication of the kind of company they are."

    In a survey she conducted of 32 employers, Weiss found that "very few" either had any transgender employees or knew of any transgender employees at the time they embraced gender identity.

    That was true of Chevron, which now employs 59,000 people, when it adopted its policy in 2005.

    "We’ve been very proactive," Young says. The new policy, she says, reflects the company’s commitment to "diversity, inclusion, employee engagement" and its bottom line. "If [consumers] don’t see that your company embraces diversity, they won’t buy your products," she says.

    Chevron’s policy, Young says, "is something that was well thought out."

    "This has gone through many gyrations, through the CEO," she says. "It’s not sort of a flavor of the month."

    The "Transgender @ Chevron" guide was based on the research of such groups as the HRC and the practices of companies including Kodak, Raytheon and American Airlines.

"These are issues we have to deal with as a company. ...It's part of the
process of having an inclusive
work environment."
--Carole Young, Chevron

    And while a restroom policy guide might sound trivial, it’s not. Restroom use has come up more than once at companies perplexed about how to deal with a transgender employee.

    "Restroom access needs to be handled with sensitivity," Chevron’s guide says, adding that "once transition is complete, a transgender employee has the right to the same access as a non-transgender employee of the same gender."

Legal front
    During the past few years, meanwhile, some courts have become more receptive to transgender bias suits. In a landmark August 2004 decision, the 6th U.S. Circuit Court of Appeals in Cincinnati said the city of Salem, Ohio, could be sued under Title VII for discrimination based on a transgender firefighter’s failure to behave according to gender stereotypes.

    Jimmie Smith was transitioning from male to female at the time he was suspended from the fire department. The same appeals court in March 2005 affirmed the jury award in the case of transsexual Cincinnati police officer Philecia Barnes.

    In California, the 2003 amendment to the Fair Employment and Housing Act barring gender identity discrimination has given plaintiffs’ lawyers a means to sue employers in state court. Ryan, who says she became a woman in February 2005, is using the law in her pending case against Parsons Brinckerhoff. "FEHA is more flexible and more favorable to plaintiffs" than Title VII, says Waukeen McCoy, Ryan’s San Francisco lawyer.

    According to attorney Minter, the threat of litigation has so far not done much to motivate companies to protect transgender employees. "It has helped move things along, but it’s not been a driving force," he says. Steve Amerige, a spokesman for gay, lesbian, bisexual and transgender employees at Adobe Systems in San Jose, California, recalls that even the amendment to state law did not figure into discussions about the gender identity policy that the software company adopted in 2004. "The issue from Adobe’s perspective was all about ‘What is the right thing to do?’ " he says.

    "We just don’t discriminate," says Ivan Dominguez, director of diversity at Cadwalader, Wickersham & Taft, one of the first New York City law firms to include transgender employees in an EEOC policy. "Whether it’s a matter of race or gender identity, those do not relate to performance on the job."

    But Minter and others believe the process of transgender acceptance may now need a strong legal jolt or two if it is going to move beyond diversity leaders in industry and academia. Currently, 40 colleges and universities, including five of the eight Ivy League schools, have transgender-inclusive policies.

    "Many employers still react from a place of fear and ignorance," Minter says. "They won’t even give the transgender employee a chance."

    Some companies "do not really see this as an issue of importance to their workforce," says Weiss, the law and society professor. "They’re more concerned with production and the traditional process of business."

    The Supreme Court, which denied review in the Barnes case, has yet to rule on whether Title VII applies to transgender discrimination. Minter doesn’t expect such a case to reach the court in the near future. But Christopher Daley, director of the Transgender Law Center, says that just having "a number of other circuits come down the way the 6th Circuit did would be incredibly helpful."

    Even if the Supreme Court were to deny Title VII protection, experts do not believe companies would start tearing up their policies. "Companies doing this are doing this because it’s good for business," Weiss says.

    At Chevron, Carole Young admits that the response among employees to the company’s transgender initiative has been "mixed," with some voicing the concern that tolerance of transgender people "isn’t part of the belief system we should buy into."

    Human resources managers, though, have sat down with such employees and talked to them "about the business case to get them on board," explaining that a transgender-tolerant policy is ultimately good for Chevron’s business.

    Young says other employees, meanwhile, have "actually come out and admitted they are transgender" since the policy went into effect. One of them told her how relieved he was to do so.

    "He had always felt," Young says, "that he was living a lie."

Workforce Management, June 26, 2006, p. 62-63 -- Subscribe Now!

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