Workplace Dress Codes and Transgender Employees



Workplace Dress Codes and Transgender EmployeesDress codes should be modified to avoid gender stereotypes and should apply consistently to all employees. Transgender employees may dress consistently in accordance with their full-time gender presentation.If an employer has a dress code, it should modify it to avoid gender stereotypes and enforce it consistently. Requiring men to wear suits and women to wear skirts or dresses, while legal, is based on gender stereotypes. Alternatively, codes that require attire professionally appropriate to the office or unit in which an employee works are gender-neutral. Employers can legally implement gender-specific dress codes as long as they are not arbitrarily enforced and do not favor or affect one gender over another.[1]Generally speaking, employers have a right to establish employee dress and grooming guidelines during work hours if they are reasonable and serve a legitimate business purpose. Such purposes include:Maintaining a certain image with customers and competitors,Safety, such as requiring employees to wear closed-toe shoes, goggles or gloves, andVisibility, requiring employees to wear uniforms so that they are clearly recognizable to the public (e.g.: law enforcement).In the vast majority of cases, employers do not have the right to monitor or regulate employees' off-the-job conduct; dress codes should not apply to activities outside of work. While some transgender employees may cross-dress outside of work — including cross-dressers and employees considering or beginning the process of transitioning genders — the employer should neither inquire about such activity nor take adverse action against such an employee should it learn about off-the-job cross-dressing from another source.From The Human Rights CampaignAs Transgender Employees Increase, Employers Need a Gender-Neutral Dress CodeIssues surrounding transgender rights within a workplace are moving more into the mainstream as the number of transitioning individuals continues to increase. There is currently no litigation regarding dress codes, often found not violative of Title VII, but Jen Cornell, Nilan Johnson Lewis employment & labor attorney, says this area has a high risk for future litigation, and employers need to be educated and prepared. Cornell, who works with employers on the defense of sexual and racial harassment claims, says it’s important companies develop a dress code policy with a gender-neutral approach: “Employers might not know and don’t necessarily need to know if an employee is transitioning, and a gender-neutral dress code would help avoid incidents of potential discrimination.” This issue poses greater liability to employers following recent Circuit court decisions and the Equal Employment Opportunity Commission’s April 2012 recognition that employment discrimination against an employee or applicant on the basis of the person’s gender identity constitutes as sex discrimination contained in the Title VII of the Civil Rights Act. Cornell says an altogether gender-neutral dress-code would be easier for employers to enforce, won’t need frequent updates, shows that the company is being proactive, and creates a comfortable environment for current and/or future transgender employees. From Society for Human Resource ManagementDRESS CODE ALTERNATIVES Increasingly, school districts are adopting dress codes that do not differentiate based on gender. This approach minimizes the risk of liability under the First Amendment and other constitutional provisions, as well as laws prohibiting discrimination based on sex or gender identity. While we strongly support dress codes that are gender neutral, we recognize that some districts continue to have gender specific dress codes. Accordingly, the model policy requires that students must be permitted to dress in compliance with the school’s dress code consistent with their gender identityfrom: National Center for Transgender EqualityModel District Policy on Transgender and Gender Nonconforming StudentsBCP: Best Current PracticesWhat should we include in our EO policy to protect transgender workers? Issue: In some workplaces, discrimination against and harassment of transgender workers can be a problem.? Workers may need to hide part of themselves at work.? Workers who transition to another gender may be dismissed, harassed, or otherwise suffer discrimination.? Laws in some states and localities prohibit discrimination based on gender identity and expression, but other states and localities do not have such a safeguard.BCP: Include "gender identity or expression" to your EO nondiscrimination policy.BCP: Prohibit not only discrimination, but also harassment, in your EO policy or a comparable document.? Ensure that "gender identity or expression" is included in lists of reasons not to discriminate or harass workers.Dress CodesWill my transgender worker need accomodation for our dress code? Issue: Some employers specify a dress code that is different for men than for women.? Workers who are transitioning are required, prior to surgery, to assume the role for their new gender.? This process is known as the Real Life Experience.? Part of that experience is dressing appropriately for the new gender role.Since the medical processes take time, there may be some elements of gradual transition in their appearance.? For example, when piercing ears, the starter studs must be kept in place for 6 weeks, which may be noticed when a male-to-female worker has not yet transitioned.? A worker who has not yet completed electrolysis may have visible facial hair at times.BCP: Allow enough flexibility in the dress code to accommodate transition from one gender to the other.BCP: Revise the dress code to avoid sex-specific requirements.Sample Policy: "A transitioning employee's attire should remain professionally appropriate to the office in which they work and the job they hold.? The same dress codes and rules for behavior apply to transgendered as to other employees.? If, as a manager, you are concerned about the appearance your transgendered employee will present when she or he starts coming to work in the other gender role, ask for a picture of her or him in professional attire.? If you still have concerns, these should be addressed with your employee.? If she or he dresses or behaves inappropriately, this issue should be dealt with the same way it would be with any other employee."? [AMR]Cross DressingWhat if a worker tells me he is a cross dresser, but does not want to transition? Issue: Some transgender workers live as women some of the time and as men some of the time, in effect cross dressing on a part time basis.? This may be a transsexual who has not yet transitioned to full time, or a cross dresser who is content with a part time gender expression.? Such workers fear that discovery of their cross dressing, even when on personal time, may lead to discrimination or harassment at work.BCP: Cross dressing off the job is not related to a workers job performance.? A person who cross dresses off the job may feel safe if his or her employer's EO policy prohibits discrimination or harassment based on gender identity or expression.? (Usually the "gender expression" part is applicable to part time cross dressing.)BCP: A worker who wishes to cross dress part time on the job is different from a worker who needs to transition on a full time basis.? Requests for part time cross dressing on the job should be addressed on a case-by-case basis.? These requests are rare and are often a step toward a full time transition.This page Copyright (c) 2005 by Transgender at Work. All rights reserved. From Transgender at Work Project ................
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