Diane Sawyer’s primetime interview with Bruce Jenner where he confirmed that he is transgender, and more closely identifies with the female rather than male gender, has raised awareness on the issues that affect these individuals. An estimated 19 million people watched the two hour interview.  There are an estimated 700,000 transgender individuals in the United States (about .3 percent of the population).  The State of Texas does not identify transgender individuals as protected class for employment discrimination law purposes (although some local governments in Texas have).  However, because the EEOC has expressed and shown its EEOC’s willingness to use existing civil rights laws (Title VII) to advocate and litigate for transgender rights, employers must educate themselves about on the three most common situations likely to arise in the workplace that has a transgender employees in it (i.e., restrooms, dress codes and treatment from supervisors and co-workers).

  • Consider establishing single occupancy toilet facilities, unisex restrooms or allow transgender employees to use the restroom facilities of the gender with which they identify.  Single occupancy restrooms can be used by both transgender employees or those employees uncomfortable sharing common restrooms with transgender employees.
  • Educate managers and supervisor about using the gender pronouns and names that are appropriate for the employee’s new gender and all employees about proper treatment of transgender employees (including anti-harassment and non-retaliation obligations).
  • Allow transgender employees to dress like and apply employer dress codes that apply to the transgender employee’s preferred gender.

While the population of transgender individuals is very small, human resources personnel who have transgender employees in their workplace should educate themselves on the issues that can commonly arise as well as how existing legal obligations in their jurisdiction might cause the employer to modify its existing policies and practices.  Employers looking for guidance on how to deal with transgender employees or an employee transitioning can look to other employers that have published their policies online.  Chevron and Ernst & Young have published guidance that is available on the web.

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