On Wednesday, November 29, 2017, in a 154 page report addressed to President Donald Trump, Vice President Mike Pence, Senate Majority Leader Mitch McConnell (R-KY), and House Speaker Paul Ryan (R-WI), a coolly unapologetic Catherine E. Lhamon, stated: “In order to effectively and consistently protect LGBT employees from workplace discrimination, Congress should immediately enact a federal law explicitly banning discrimination in the workplace based on sexual orientation and gender identity.”
Lhamon also concluded the “inconsistent and irreconcilable patchwork” of state laws and federal court decisions dealing with anti-LGBTQ employees workplace discrimination “render LGBT employees insufficiently protected from workplace discrimination.”
Lhamon sits as the Chair for The U.S. Commission on Civil Rights, an independent agency tasked with informing the development and enhancing enforcement of national civil rights policy and federal civil rights laws. She is one of a growing number of Americans, LGBTQ and their allies alike, pushing legislators for more local, state, and federal non-discrimination and anti-harassment policies. Some states and local ordinances across the nation have passed laws preventing discrimination of employees based on gender identity; however, as it stands, there is no federal civil rights law that protects employees based on gender identity. Attorney General Jeff Sessions reversed Title VII, which protects employees based on sex, originally having included transgender and gender non-conforming people under the Obama administration.
After my interviews with transgender and gender non-conforming people on their experiences with discrimination in the workplace, I turned to Beck Bailey, the Deputy Director of the Human Rights Campaign Workplace Equality Program, to figure out what we should be doing to enforce non-discrimination and anti-harassment policies.
Given that most marginalized people don’t report discrimination at work, out of fear of retribution or losing their jobs, what can organization leaders do and what are they doing to make the reporting process more secure?
In the work that we do with corporate America, this is generally speaking with larger corporations, as well as the large law firms in the U.S., we find that the best practice is certainly to encourage reporting to direct supervisors or managers or to HR or Human Resource Liaisons. But that alone is insufficient, because you may actually be experiencing discrimination from your direct manager or even from your human resources team and so the best practice is to have ways to do anonymous reporting through 800 toll-free numbers and blind email reporting. Obviously it’s usually easier for the organization to address if the person will reveal themselves and what exactly is happening but at the very least if they can report and say what work unit therein and what they’re experiencing that needs attention, then it can go into higher level of reporting and be dealt with from the top down so to speak. So usually that reporting, that anonymous reporting is going into a headquarters where the leadership in human resources and even the diversity team can take that information and start an investigation. So the best practice is to really have that mechanism that allows people to report all the way up the chain outside of going through their own manager.
HRC has a trans toolkit for employers. Could you share a little more what the toolkit is about?
We created the toolkit as a way to bring together all of our resources for employers in creating a more inclusive workplace for transgender and gender nonconforming people, and particularly it is broken up into various working parts and resources. One is building the business case for employers and making sure they understand why being an inclusive employer is not only the right thing to do but also good for their business and helpful to be able to show them that business case. And then it goes into a lot of education resources and tools that employers can use.
For example, it does educate on the legal landscape for employers so they can understand where the law is supporting trans people and also where the law is insufficient. It goes through recommendations of policies and workplace practices — sample non-discrimination language, sample restroom policy or dress code policy, and things like that. It also has additional tools such as a way to go through and do a self-audit of a company’s current practices and be able to kind of zero in on where a company would need to improve.
And then, of course, there are sample gender transition guidelines. So there’s really a lot in there, in addition to what’s in the document, there’s videos on the landing page that companies can show to their management teams as a way to connect people to trans voices and use that as part of their overall training and education efforts. Lastly, I’ll say something that’s a little innovative in terms of the tool kit is that there are scenario-based learning examples in the toolkit that can be used as part of HR and management training. And it allows them to go through real-life examples that trans people have encountered and create dialogue about how their company can address those challenges.
How can we implement the toolkit in the workforce? Will employers actually take this toolkit into serious consideration?
The way that we help kind of measure and drive employers to adopt these tools is through the Corporate Equality Index (CEI) and also through our ongoing outreach and education with employers. If you look at the corporate equality index, a few of the things that we measure companies on include whether or not they have diversity training and new hire training that addresses gender identity and we measure that as part of the CEI and as a way to drive them to adopt more comprehensive internal education efforts, because that’s how we’re going to prepare workplaces better for being more inclusive of TGNC employees. Additionally, we are always in outreach with employers and educating them. The number of conversations we have a week with employers saying “Hey, we know we have TGNC employees and we want to do better” or “We just had an employee who came out and we don’t even know where to start.” That’s the thing that we’re always engaged in.
I read on the HRC website there’s something like 66 percent of Fortune 500 Companies that prohibit discrimination on gender identity?
It’s actually higher than that. 83 percent of Fortune 500 companies include gender identity in their non-discrimination policies, up from only three percent in 2002. This statistic can be found in our most recent Corporate Equality Index, on page four.
How should workplaces eliminate the idea of a gendered dress code in ways that address transsexualism and classism? And should these policies be extended to private businesses?
Our best practice recommendation is to actually not have gendered dress codes, just because it should be gender inclusive or gender neutral. So for example, traditionally you might see in flight attendants that there’s a “man’s dress uniform” for flight attendants and a women’s dress uniform” for flight attendants. And our best practice recommendation is actually that there’s just articles of clothing that are approved for flight attendants. And flight attendants should be able to pick and choose those articles of clothing in the way that best expresses themselves. So if they’re non-binary they may want to adopt pieces of both, what is conditionally known as “men’s and women’s dress.” We really urge companies to move away from gendered dress codes and move more towards dress codes that speak to the functionality of the person’s job, so you maybe see in some companies what they call a dress code that’s called “dress for your day,” meaning if you have meetings with clients then you’re expected to be in the professional dress, and maybe if you don’t have any meetings that day you can dress in “business casual” but it doesn’t define business or business casual dress by gendered standards. So it doesn’t say for example men don’t have to wear suits and ties, and women don’t have to wear dresses, but suits and ties and dresses are all professional dress.
I’d say that this is an area that’s evolved because if you go back 10 to 15 years ago, there would be a lot of emphasis on just kind of thinking about people who are transitioning in a binary way from male-to-female or female-to-male, and saying we should make sure that transgender people can wear the dress code that corresponds with their gender identity.
With more people expressing their gender in fluid and gender queer and non-binary way, we want to make sure that dress codes are fluid and non-binary, and so that’s where conversations have really come in the last 5 years.
There’s a bigger emphasis on fluidity and allowing people to express themselves across those gender norms that exist in clothing.
How can we ensure that queer and trans people of color are equally represented in the workplace? Considering black trans women, who are double marginalized in essence — they receive the highest forms of workplace discrimination and things of that nature. So how can we ensure that they are equally represented in the workplace?
From a workplace point of view I think there’s a couple of places of intervention, one is we certainly have to continue to educate those people who are doing the hiring, such as companies and human resources professionals, and recruiters on people with marginalized identities that experience kind of compounded discrimination across intersectional identities and that means they have to work even harder to make sure they’re reaching out to those communities to provide opportunities. And from the educational side at HRC, we need to continue to message and inform and help recruiters and employers understand that if you’re going to make a trans hiring event, if you focus on just professional college educated workers, you are going to because of the disproportionate effect of racism, sexism, and transphobia, you won’t necessarily reach more candidates of color, you need to reach deeper into the community perhaps, and you need to work directly with organizations that helped support trans people of color and queer people of color in order to get more candidates in your door.
We have seen some really successful partnerships along those regards. A lot of them are driven more on a local level, so if you look at the City of San Francisco, for example, and their LGBTQ center, they’ve had a very successful trans hiring campaign, and employment, they run a job fair for trans people and it’s more representative of trans people of color than a lot of other folks because they’ve worked really directly with others in their community.
You mentioned companies expanding health benefits for trans people — how will trans surgeries be covered 100 percent and not be considered cosmetic?
There is 80 percent of the money that we’ve raised in the CEI offering trans inclusive care that includes HRT, tops and bottom surgeries, as well as mental health care, and wellness exams and things like that. More and more companies that we deal with every year are adding things like FFS, tracheal shave, body contouring, voice modification, and so on. We see a lot of progress in this space, it’s certainly not 100 percent and we continue to work with employers to help them understand the difference between cosmetic surgery and medically necessary and appropriate care for transgender people. And we are happy to see the progress in that space. Starbucks is a good example of that but there are others as well.
Is there a way to deal with LGBTQ slurs in the workplace, even if they aren’t said to anyone in particular?
There’s a couple of levels here — one is, we really work with companies to put in basic protections and policies, for example, to adopt the words gender identity and expression, in their non-discrimination and anti-harassment policies. The reason why I bring this up first is because if something is encoded in the company’s policy and handbook, it’s easier to get the company to take action when there is for example someone who is acting inappropriately in the workplace, so one is working to get those policies in place, which is something that we do through our work in the corporate equality index, and then once those are in place, they obviously need to have education, and support so that people understand what is appropriate and inappropriate behavior. But then going almost full circle to where we started, if an employee who is trans overhears or is the subject of these inappropriate slurs or remarks, that there’s a way for them to report that, or even if for an employee who’s an ally overhears colleagues speaking inappropriately with slurs and derogatory statements that they report that — and that we create a culture where when we overhear language that is inappropriate to the trans community or anyone else, we’re actioning that to be addressed within our organization. I think that sometimes people don’t report things that they overhear, maybe they’re not sure that it was “bad enough” or they don’t believe that action will be taken, but we have to start to push those things out and demand the right action be taken or in some cases even have courageous conversations ourselves to start to change the workplace culture.
Will businesses including local, state and federal, allow a “don’t ask don’t tell” policy allowing those in the trans community to work as and use the restroom as who they really are, and also reprimand those as discriminators regardless of their position in said business?
There a couple of things here — one is, I like that it came up about local, state, and federal, because as you probably know in your research, we don’t have uniform civil rights protections based on gender identity. So we have some local laws, we have state laws, patchwork across the country, we have some interpretations of federal law under Title VII, for example, and so what’s good about companies stepping forward and creating their own policies is that then you can say “in my business regardless of the local law or the state or federal law, I’m going to be an inclusive employer and protect people on the basis of the gender identity, and if I do that, then I have a non-discrimination policy, I have an anti-harassment policy that’s based on that, I have a mutual respect in the workplace code that I am following regardless of the law, so we aren’t really focused on the law to create that space.” So once the employer has made that commitment, employers who have non-discrimination policies based on gender identity, have corresponding restroom policies that say people use restrooms based on their gender identity, that they decide where they use the facilities, we don’t frame it as a “don’t ask don’t tell” policy but a self-determination policy in which people should be able to use the restroom that’s right for them and they’re covered by the non-discrimination policy when they do that. And the ability to discipline people who are discriminating against their colleagues, it rests in the fact that there’s a non-discrimination policy in the business, and then of course that good reporting mechanism that allows people to report their experiences and get action from the company.
Image via Getty
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