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Know the Law: Addressing gender identity at workplace

Written by: Linda S. Johnson

Published in the Union Leader (4/11/2016)

Q. I am the owner of a small company in New Hampshire.  A female employee has informed my human resource manager that she will be transitioning to become a male in the coming year. Is there anything that we should be doing about this?

A. You are not alone with this situation as increasingly more and more people are “coming out” about their transgender identity.  In the workplace, you need to be mindful that the Equal Employment Opportunity Commission has taken the position that gender identity and sexual orientation are protected classes under Title VII of the Civil Rights Act.  That means that you cannot allow discrimination or harassment of your employee based on his or her gender identity.  New Hampshire law includes sexual orientation as a protected class, and Massachusetts added gender identity as a protected class in 2012.  

You should consider adding gender identity and sexual orientation in your company anti-harassment and anti-discrimination policies, and train supervisors on typical questions regarding gender identity.  For instance, what does transgender mean, what pronoun should be used for a transgender person, and what rights do they have in the workplace?   Co-employees should be trained on diversity in the workplace.  A transitioning employee (such as this employee transitioning from being a female to a male) also raises benefits questions such as what medical coverage there might be for hormone treatments or surgery, should the employee decide to undergo surgery.  Assistance from your human resource manager regarding these kinds of questions will be helpful.  

There may inevitably be questions about bathroom use, dress codes, confidentiality and privacy, work assignments, and customer bias.  Your employee’s advance notice will allow you some time to evaluate the situation, talk to the employee, and come up with a transition plan that best meets the needs of the employee and helps your company to avoid violations of the law or the employee’s rights. As with many workplace issues, dealing with an issue proactively, rather than scrambling to address it when it arises, is always best.

Linda Johnson serves on the NH Diversity Workforce Coalition and as chair of McLane Middleton’s Diversity Committee.  She can be reached at [email protected].

Know the Law is a bi-weekly column sponsored by McLane Middleton, Professional Association.   We invite your questions of business law.  Questions and ideas for future columns should be addressed to:  McLane Middleton, 900 Elm Street, Manchester, NH 03101 or emailed to [email protected].  Know the Law provides general legal information, not legal advice.  We recommend that you consult a lawyer for guidance specific to your particular situation. 

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