Category Archives: Employment Law

The exact scope and coverage of workplace legal protections for transgendered individuals isn’t entirely settled.  But as a practical matter, employers are wise to treat transgender status the same as race, age, and other “traditional” protected statuses.  Why?  Many reasons, but here’s two:  kindness and respect towards individuals makes good HR and business sense, AND employees who feel protected and respected are far less likely to bring legal claims (with all the attendant cost, angst, and disruption).  Here are some specific pointers for creating a professional work environment for transgendered or transitioning employees.  Use Individual’s Preferred/Chosen Names And Pronouns – The occasional inadvertent slip may happen. But as a matter of effort and practice, strive to call everyone by their name and use pronouns that match the gender with which they identify.  Avoid Excessively Personal Questions – If you wouldn’t ask it of a traditional or “cis-gendered” person (e., someone whose gender identity and expression match the biological gender of their birth), don’t ask it of a transgendered or transitioning employee.     Don’t Discuss Coworkers’ Personal Business Behind Their Backs – Good advice for all But especially when it comes to employee sexual orientation or gender identity, employers should never intentionally “out” anyone (and should strive mightily to avoid doing so unintentionally too)! Know The Restroom Rules – OSHA requires that all have access to restrooms that correspond to their gender identity, and both OSHA and EEOC forbid “segregating” transgendered individuals or requiring them to use specific facilities. If you know or anticipate that non-transgender coworkers…

No.  You really don’t.  Not in an absolute sense anyway.  Under most equal employment opportunity or workplace civil rights laws, you need to treat similarly situated people similarly.  That doesn’t mean “identical always in all ways.”  Employees rightly expect consistency and everyone naturally feels that prior situations involving leave, discipline, termination, pay, etc. “set precedents.” So it’s wise to strive for consistency as a general goal.  But there are plenty of legitimate and non-discriminatory reasons – including the passage of time and accompanying changes in business, financial, or other operational circumstances – that may justify treating one employee “differently” than you’ve treated others in the past.  Of course, any reason(s) for “differential” treatment must be verifiably true, business-related, and unrelated to the employee’s legally protected status or conduct.  In addition, such reasons should be well and carefully documented.  While each situation is unique, here are some “differentiators” that may justify treating a given employee differently from others Temporary regular employee status The employee engaged in a different type or degree of misconduct compared to others (assaulting a coworker is different than tardiness!) Supervisor v. non-supervisory status (shouldn’t you hold leaders to a higher standard?) Intervening change in applicable policies/processes (preferably documented) Prior disciplinary history (or LACK thereof) In discharge/discipline decisions, strength (or lack) of evidence of policy violation or other wrongdoing In hire/promotion decisions, strength (or lack) of prior, relevant experience or education Materially different job duties, functions or expectations Other “mitigating” or “aggravating” factors Everyone wants and deserves to be treated “fairly,” but that doesn’t…

The Americans with Disabilities Act (ADA) requires employers to engage applicants and employees with medical limitations in an “interactive process” to see what (if any) “accommodation” should be provided to help them do their jobs.  But that’s a dry legal concept.  Let’s be more practical – and festive!  Think of the accommodations process as a dance.  And the next time you need to discuss a potential accommodation, follow these simple steps… Don’t Talk In Legalese – Though easy to do, don’t discuss “disabilities” or “accommodations” (or “undue hardships”) with your employees. Those are legal conclusions, and if you need to make them at all you should make them AFTER you gather case-specific information.  If you know you have an employee with “some need,” just talk to them about what that need is.   As you do that, talk instead about an employee’s “conditions” or “restrictions” and ways you can “help” or “assist.”  Think of it as the difference between saying “wanna dance” and “would you like to waltz with me along the line of dance at 58 measures per minute?”  Which sounds more enjoyable?  Talking like a real human being almost always helps the “interactive” part of the interactive process! Talk To The Employee – Actually, do mostly listening. Start with a simple “how can we help you?” and take good notes.  Ask follow-up questions focused on “what can you do” and “what can’t you do” in relation to the particular job/position.  In return, promise nothing except prompt review and follow-up.  In other words, let your dance…