Nanci K. Carr, Following Bostock, How Employers Can Lead the Way to Embrace Transgender Employees in the Workplace, Denver Law Review Forum (2021).
Much has been written about the Supreme Court’s affirmation in Bostock v. Clayton that Title VII’s prohibition on the basis of sex includes protection for the LGBTQ+ community, particularly the legal implications related to other aspects of employment law. In this article, however, Professor Carr goes beyond legal requirements to encourage employers to recognize that the time has come to develop policies and training that not only “compl[ies] with the law, but also . . . embrace[s] transgender people in the workplace.” This is especially timely as the “EEOC has identified LGBTQ employees’ rights as an enforcement priority.”
This article includes a number of suggestions for developing antidiscrimination and antiharassment policies and training that include gender identity and gender expression. Specifically, Professor Carr emphasizes the importance of striking the balance of inviting transgender employees into the discussion when developing such policies and trainings, without placing the burden on these employees for the education of the employer’s workforce. “[I]t should not be their burden to bear; employers are responsible for ensuring safe workplaces.” To that end, senior management, in consultation with external guidance from organizations like Pride at Work or the National Center for Transgender Equality, should be the main developers and implementers of these polices and trainings. Professor Carr also identifies key elements to inclusive and welcoming policies and trainings such as those that specifically address name changes, pronoun usage, dress codes, healthcare and healthcare insurance, and restrooms.
Taking the steps to create a more inclusive workplace for transgender employees ultimately leads to a better environment for all. “While compliance with the law is mandatory, the additional benefit to employers is that creating a workplace climate of respect, trust, and understanding of all employees leads to a great probability of employee retention.”