A workplace issue for employers

Rosalind Bentley

Minneapolis Star Tribune, May 11, 1998
425 Portland Avenue, Minneapolis, MN, 55408


       It can be one of the most unexpected, sensitive and puzzling issues an employer ever confronts.

       An employee requests a meeting, sits down, and haltingly tells you that things are changing drastically in his life. Very drastically. He's undergoing a gender transition, and soon wants to start coming to work as a woman. His behavior and name will change accordingly.

       He wants to keep his job and will continue to work hard and be effective with clients and customers, but he must work in the persona that he believes is true. He asks you to help him in that process.

       Now, what in the world do you do?

       The answer, at least in Minnesota, is that you accommodate him. It's the law. The Twin Cities saw the result of such a circumstance last week when Debra Davis, a Southwest High School librarian, came out as a transgender person at work.

       The Minneapolis Public School District, Southwest administrators and Davis took nearly two months to come up with a plan that would make her transition easy on parents, teachers, students and others. The plan went smoothly. Publicly, at least, there has been little outcry.

       Though unusual, Davis's situation is far from unique. In fact, as workplaces become more diverse, the issue of how properly -- and legally -- to handle a transgender employee's coming-out may crop up more often.

       For years, Davis has been leading training sessions throughout the state on how to help employees who are in transition from one gender to the other. She's worked with all sorts of employers, including hospitals, theaters and law firms.

       Although it is impossible to tell exactly how many transgender people there are in the United States -- estimates range from 1 percent to 5 percent of the population -- the Waltham, Mass.-based International Federation for Gender Education (IFGE) reports that employment issues are the No. 1 problem for transgender people who want to come out at work.

       "People are fearful about it and they see it as terribly stigmatizing and terribly dysfunctional," said Nancy Nangeroni, IFGE executive director. IFGE is the largest transgender information/advocacy organization in the country.

       "That's why the transgender community has focused so hard on being included in the effort to pass the national Employment Non-Discrimination Act."

Here, it's the law †

       Elsewhere, Nangeroni said, it's not uncommon for people to be fired after they disclose their transgender status to an employer. In Minnesota, though, firing or harassing someone because he or she is transgender is illegal. Minnesota is the only state that affords transgender people antidiscrimination protection under the 1993 state Human Rights Act.

       Still, many employers have never considered how they would handle such a situation.

       Peter Bell, executive vice president of TCF National Bank Minnesota, said: "We don't have any policies on that. It's just not something that has ever come up."

       Said Pat Prinzevalle, executive director of Alexandra House, a shelter for battered women, "We'd give the employee whatever support they needed to continue to be successful on the job."

       That's most often the way employers respond, said Minneapolis attorney Sandra Grove. As part of her practice, Grove has worked with transgender people for the past five years, and she has heard far worse. She points to one instance in which a client was made to use the restroom at a filling station a block from work. Another person was asked each day what kind of underwear they had on.

       That type of behavior violates the state statute, Grove said. Under the law, a person who has or is perceived to be having "a self-image or identity not traditionally associated with one's biological maleness or femaleness," must be given protection in housing, business, education and employment.

       Does that mean that an employer must abide by what a worker says he or she is? Or can the employer ask for some kind of proof?

       "Society is so used to these binary distinctions and gender roles that this takes getting used to," Grove said. "But the employees's word is all there is to it to establish the category. If you say you are, you are."

       It's actually a bit more complicated than that, said Janeen Rosas, deputy commissioner of the state department of Human Rights.

       While an employer should take a person's statement at face value, if the employee is asking for a medical concession -- such as time off for gender reassignment surgery -- then the employer can ask for a doctor's verification.

       But if it's an issue of simply dressing differently because they want to, or changing one's name, "that's a grayer area," Rosas said.

       For example, if a conservative law firm has a dress code policy in place before an employee discloses, under the law the firm can stick with the policy on the books.

       Or, if it's a job that requires a person to be a certain gender for the privacy of a patient or client, then an employer can place restrictions on what duties the transitioning worker can perform.

       Yet there are no absolutes, Rosas cautions.

       "In terms of what the statute requires, it's that employers protect employees against harassment because of a protected characteristic," she said. "The statute doesn't tell an employer how to do that. It's up to the employer to develop good employment practices. There's no textbook on how to do it. It needs to be taken case by case."

Law relatively untested †

       Because the statute is relatively new, there isn't much case law on it. In fact, since 1993, Rosas said, only 11 discrimination claims have been filed with her agency. Probable cause has been found in one case, and five either were dismissed, withdrawn, or determined to be unfounded. The rest are still under investigation.

Then what's a manager or supervisor to do?

       Work with the employee to assess his or her needs and concerns, experts say. Then collaborate with a human resources department and perhaps an organization that does training on these issues, such as the Program in Human Sexuality at the University of Minnesota or one of the 250 groups affiliated with IFGE.

       Syl Booth is affirmative action director for human resources for 10,650 Hennepin County employees. The county has a gay, lesbian, bisexual and transgender employees group. Booth said that while the county doesn't have a written policy on gender transition, there are ways to deal with it which accommodate both the employee and other workers.

       "The employee is aware it's going to cause some reaction from co-workers, but management's job is to make the environment healthy for all sides," she said.

       An employee should work with a supervisor, department manager and human resources representative to determine needs. If the transitioning employee didn't want to continue working in the same unit, he or she could request a transfer, with the reason for the move confidential. Or, if the person wants to stay in his or her position, sensitivity training can be done in the office.

       A restroom might be converted to unisex, if sharing male-or female- designated restrooms is an issue. The key to making it work, Booth said, is to communicate and educate.

       "It's a reality of employment now," she said. "And sometimes you've got to break new ground."


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