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Law column: Transgender issues in the workplace

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What is a “transgendered” person? Is a transgendered person protected from discrimination and harassment under Iowa law?

Transgender individuals are people with a gender identity that is different from the biological sex assigned to them at birth. Someone who is born male but who identifies as female is a transgender person and a woman.

Similarly, a person born female but who identifies as male is a transgender person and a man.

Effective 2007, gender identity and sexual orientation became protected classes under Iowa Code Chapter 216. The Equal Employment Opportunity Commission similarly has found that transgender discrimination is discrimination on the basis of “sex,” as Title VII bars discrimination not only on the basis of biological sex but because of gender stereotyping, as well.

The American Civil Liberties Union recently filed a discrimination charge with the Iowa Civil Rights Commission on behalf of a transgendered woman against a Des Moines hotel for its alleged treatment of her when she tried to check in.

According to her complaint, front-desk employees gave her “looks of disgust,” avoided eye contact and took over an hour to check her in. Other, non-transgendered guests arrived and allegedly checked in within five minutes.

Finally, the Iowa Civil Rights Commission recently issued two rulings permitting transgendered women the right to use public women’s restrooms. On the other hand, an administrative law judge ruled that a transgendered woman did not have a right to use a female locker room at the Burlington YMCA.

What should Iowa employers know about this subject? Here are several tips:

1. Be proactive — Employment lawyers and human-resources employees recommend a discussion with the transgendered employee sooner, rather than later, to discuss issues that might arise at the employer’s workplace, such as dress code, bathroom facilities, etc. Ignoring the issue and hoping it just goes away is the most common mistake employers make.

2. May an employer enforce dress and grooming standards? Yes — Dress codes are not precluded under Iowa law as long as an employer allows an employee to appear, groom and dress consistent with the employee’s gender identity. Employers are urged to evaluate and consider eliminating gender specific dress and appearance rules and to instead focus on legitimate, business dress code standards.

3. Does the law require employees to eliminate gender segregated restrooms? No — It still is legal in Iowa for employers to maintain gender segregated restrooms. However, employers must permit employees to access those restrooms in accordance with their gender identity, rather than their sex at birth.

On June 1, the Occupational Safety and Health Administration issued guidelines regarding restroom access for transgender employees stating that it considers it a “best practice” to allow employees to use bathrooms consistent with their everyday gender identity. Visit here to see the document.

4. What about religious objections by co-workers? Co-workers with religious-based complaints need to understand that while they may hold their own opinions about transgender co-workers, they cannot harass, discriminate against or otherwise inappropriately conduct themselves toward transgender workers.

Co-workers with religious-based complaints must understand acceptance of a transgendered co-worker has nothing to do with the expectation of changing their minds or religious beliefs. The focus for employers is not on beliefs, but on behaviors.

5. Harassment will not be condoned — Harassment based on sexual orientation and gender identity can include sexual advances, and intentional misuse of gender specific pronouns. It should not be tolerated and should be treated like any other form of workplace harassment under the employer’s policy. (That policy should include sexual orientation and gender identity as protected-class statuses.)

This is an area of employment law that is changing fast. Employers should have a game plan in place on how to address these issues if they arise.

• Wilford H. Stone is with Lynch Dallas Attorneys-at-Law.

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