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Go Beyond the All-Gender Restroom for an Inclusive Workplace

By Diana Sadighi posted 10-21-2022 11:50 AM

  

Diversity encompasses and embraces the differences we each bring to the workplace. One area of diversity is gender. Gender, while often used interchangeably with sex, refers specifically to the behavioral, cultural, psychological, and social traits typically associated with one sex rather than biological characteristics. Today, our definition of gender has expanded to include gender expression and identity beyond perceived or expected societal norms. Some individuals identify as a mix of genders, some identify as a man or a woman, and some identify as no gender.

We have seen state and federal laws get more specific around gender expression and protections in the past few years. For example, California, Colorado, New Mexico, and Utah have gender identity as a protected class. In 2020, the U.S. Supreme Court's decision in Bostock v. Clayton County meant that courts would interpret the illegality of sex discrimination to include gender identity and sexual orientation.

Gender identity refers to a person's internal sense of being male, female, or something else. It is not necessarily visible to others and may or may not correspond with the individual's sex assigned at birth. 

Gender expression is the external appearance of one's gender identity and is usually expressed through behavior, clothing, body characteristics, or voice, which may or may not conform to socially defined behaviors and characteristics typically associated with being masculine or feminine. An individual's gender expression does not automatically imply one's gender identity. All people have gender expressions.

Societal and legal considerations are prompting organizations to examine their workplace practices around gender. For organizations with diversity, equity, and inclusion (DEI) initiatives, awareness of these gender-expansive definitions is just a start. Diversity is of little significance without inclusion, where everyone feels welcome, valued, respected, and heard. Here are some inclusive practices for your organization.

Use Gender-Inclusive Language

  • It is important to use an employee’s self-identified name and pronouns. Doing so shows respect for the individual, and it may prevent legal issues. Although accidental misuse of an employee's name and pronouns does not violate federal law, intentionally and repeatedly using the wrong name and pronouns could contribute to an unlawful hostile work environment. Twenty-two states, including California, Colorado, New Mexico, and Utah, explicitly prohibit discrimination based on sexual orientation and gender identity, and other states cover these categories under existing laws on sex discrimination. For more tips, read the Employers Council article Why Pronouns Matter.

  • Avoid sentences that imply two genders. Instead of addressing groups of people with binary language, such as “ladies and gentlemen,” try more inclusive alternatives, such as “folks,” “colleagues,” or “everyone.”

  • Describe the relationship instead of the gender. For example, use “parent,” “child,” “spouse,” or “sibling.”

  • Do you need to use a title? It’s difficult to choose between the gendered Miss, Mrs., and Ms., and using Ma’am and Sir is increasingly outdated. If you’re concerned about being impolite, just ask: “May I call you Mary?”

Evaluate Your Recordkeeping  

Check your systems and forms for gender designation questions.

  • There are very few legal requirements to capture gender in employee records. Verifying gender is not part of I-9 forms, E-Verify, or Social Security numbers. It’s not required on employment applications. Some government reporting requirements, including EEO-1, require an employee to self-identify gender and race, which may drive a requirement in your payroll or applicant tracking system.

  • While you’re required to use official documentation to establish legal names, separate this requirement from the employee’s identified name for items like email, business cards, and phone directories. Respecting an employee's request is not just about gender. After all, your organization probably allows “Joe” instead of “Joseph” in the employee directory.

Provide Proper Facilities

Employees should have access to the restroom corresponding to their gender identity. Employers may not ask about an employee’s gender status or question the employee regarding which restroom they intend to use. While some employees may be uncomfortable sharing the restroom with a coworker who is believed to be transgender, the challenge for employers is how to address such discomfort while balancing the rights of all employees. Some options to consider include the following:

  • Making available a single-stall restroom that can be used by any employee.

  • Making all multiple-occupant restroom facilities gender-neutral with lockable single-occupant stalls.

  • Allowing the uncomfortable employee to use a restroom in a different location.

The Occupational Safety and Health Administration (OSHA) provides more information on the topic in this guide.

Protect Employee Privacy

Employers should not disclose an employee’s gender without their consent. Treat gender as confidential information, just like age, race, or disability. Respond to coworker questions by probing why they’re asking. Curiosity isn’t a bona fide business reason; neither is a customer request or questioning bathroom usage or appearance. 

Review Policies and Employee Handbooks

In addition to the recommendations on gender-inclusive language above, the use of “he/she” is awkward. Employers are advised to use “employees,” “they,” or “you.” Specific policies to review include:

  • Dress codes should be based on legitimate business needs and related to the employee’s job. Under Title VII of the Civil Rights Act of 1964 and state laws, an employer may need to make exceptions for accommodations for employees based on religion, disability, and gender identity. In states like Colorado and Utah that have included gender identity and gender expression as areas of protection from discrimination, employers will want to implement gender-neutral dress codes and grooming standards. Employers must allow employees to dress as the gender with which they identify.

  • Examine the language in leave policies to describe the relationship instead of the gender, as mentioned earlier in this article. Refer to parental leave, not maternity/paternity leave. The Equal Employment Opportunity Commission (EEOC) Policy Guidance on Parental Leave concludes that Title VII of the Civil Rights Act of 1964 prohibits employers from establishing policies that treat male and female employees differently when they request time off the job to care for a newborn child. Alternatives like primary and secondary caregivers can be difficult to define. Also, consider language in any adoption benefits you may offer.

  • For employers covered by the Family and Medical Leave Act (FMLA), it’s important to know that the FMLA defines a son or daughter as a biological, adopted, or foster child, a stepchild, a legal ward, or a child of a person standing in loco parentis. The broad definition of son or daughter is intended to reflect the reality that many children in the United States live with a parent other than their biological father and mother.

  • Employers need an Equal Employment Opportunity (EEO) policy that is publicized through the handbook or other means indicating management’s commitment to equal employment opportunity. All EEO statements should specify that the employer does not discriminate or allow unlawful harassment against applicants and employees. When employers list the classifications protected by federal law, they should also include a statement that they “will comply with all applicable state and local laws.” While this statement will cover classifications listed in state or local civil rights laws, it is more inclusive to specifically list state requirements. For example, the Utah Anti-Discrimination Act adds sexual orientation, gender identity, pregnancy, childbirth, and pregnancy-related conditions as protected statuses.

Employers should be careful not to inadvertently expand the scope of the applicable anti-discrimination laws. In states or municipalities where the law does not provide protection based on sexual orientation or marital status, the specific inclusion of these in a policy may increase the employer’s exposure to claims of implied or express contract.

Employers Council offers more guidance and sample language on these topics in the Employee Handbook section of our website.

Refer Employees to Insurance Carrier

When it comes to insured benefits, individual employees with questions should speak directly to their insurance carriers, who can explain differences in coverage. Communicate this option as part of enrollment to all employees. Many employees have specific questions about coverage for personal medical issues, and it’s best for your organization’s staff not to be aware of medical history.

A broader topic beyond the scope of this article is choosing what insured benefits to offer all employees. Because coverage varies by state, discuss options and legal requirements with your insurance broker. For example, private insurance plans sold in Colorado cannot:

  • Inquire about an applicant’s or a beneficiary’s sexual orientation or gender identity in an application for coverage.

  • Deny, cancel, limit, or refuse to issue or renew a policy because of a person’s sexual orientation or gender identity.

  • Deny, exclude, or otherwise limit coverage for medically necessary services, in accordance with generally accepted professional standards of care, based on a person’s sexual orientation or gender identity.

Assess Your Training Programs  

Update harassment-prevention training to include gender identity and gender expression. Train and build competency within your teams; include terminology and definitions. Educate people on having crucial conversations. Illustrate various gender-inclusive interactions, like asking for pronouns. Review the content of all materials for the gender-inclusive language tips listed above.

Evaluate the Overall Workplace Culture

Do people tend to make derogatory comments or jokes? Do employees openly identify as lesbian, gay, bisexual, transgender, and queer (LGBTQ)? Do people discuss their personal lives? Are they asking questions about yours? Is the atmosphere friendly or guarded?

Don’t Forget Your Overall DEI Plan

Align your practices around gender identity and expression with your overall DEI plan. Some organizations choose to focus on a specific marginalized community, such as race, while other DEI programs are broader in scope. Some areas to review are specifically mentioning nonbinary status, affinity or employee resource groups, and employee demographics captured. As with any diversity effort, actions like adding pronouns to signature lines or all-gender signs to bathrooms should be part of an overall effort and not the only steps you take.  

This article focused on gender identity, but it’s important to note that many of these practices help all employees feel welcome, valued, respected, and heard. While this subject may be new to you, it’s likely that you navigate unfamiliar terrain regularly. We’ve learned about marijuana, mandated sick leave, and COVID-19 in our workplaces because we have the skills, talents, and experience to help our organizations. Take a breath, rely on your skills, and contact Employers Council for assistance. If you have questions or want more information, please email the Member Experience Team.


#Diversity,Equity,andInclusion
#WorkplaceCulture
#GenderDiscrimination

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