Progress for Transgender Employees Seeking Protection from Discrimination in the Workplace
Kentucky currently has no laws prohibiting discrimination on the basis of sexual orientation or gender identity. However, since 1999 Louisville-Jefferson County and Lexington-Fayette County and Covington (in 2003) have had local ordinances banning discrimination in employment, housing and public accommodations due to sexual orientation. In June 2008, Governor Steve Beshear reinstated an Executive Order banning discrimination of state employees based on sexual orientation and gender identity. On April 23, 2012 the EEOC delivered a landmark ruling, in favor of protection against discrimination for transgender people working for the federal government. With the introduction of HB 188/ SB 69 Statewide Fairness Act and the federal Employment Non-Discrimination Act on the horizon, we are prompted to encourage every employer to give fairness policies and procedures a serious review.
First on our list of Non-Discrimination Best Practices, is to modify all organizational documents addressing issues of non-discrimination to include “gender identity or expression” in the list of protected classes. The company non-discrimination policy, anti-harassment policy, equal employment opportunity policy, application form, and job postings should all be included.
The second step to ensuring fairness in your workplace is to allow employees and candidates to self-identify their preferred name, and pronoun. A great way to accomplish this is to develop a system that uses the employees’ or candidates preferred name and pronoun on all personnel records, internal and external documents and communications, business cards, websites and other written and electronic records.
Third, incorporate the concept of gender identity into all training programs and materials related to discrimination, harassment, diversity, supervision, leadership and company policy. Educate employees – particularly HR staff, management, supervisors, decision-makers, security, and reception staff – about transgendered people and the policies that are in place to protect against discrimination for all current and potential employees.
Rewriting your organizations policies and procedures is generally an annual process. However, when monumental markers are presented in the form of EEOC rulings, legislation or Executive Orders, we should all take a moment to make sure our company has the proper protections in place for both the employee and the employer.
As always, you should have a lawyer review each step in this process, every document, and training presentation, and we are here to assist you, making sure you and your employees are protected against discrimination claims. This is an ever-changing area of the law that moves with the shifting views in our culture environment, and is definitely one to watch.
Amy D. Cubbage is Of Counsel in the Louisville office of McBrayer, McGinnis, Leslie & Kirkland, PLLC. She concentrates her practice in litigation in the areas of employment, complex tort and commercial litigation, including class actions, toxic torts and mass torts. Ms. Cubbage may be reached at (502) 327-5400, ext. 308 or firstname.lastname@example.org.
This article is intended as a summary of newly enacted federal law and does not constitute legal advice.