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This is the third in a series of blogs on the rights of the transgendered person. As I’ve noted earlier, these are issues that are likely to become more evident in the workplace and they ultimately relate to many rights for all employees.
The medical condition is called Gender Dysphoria. Any employee who is transgendered has rights under a whole bunch of laws: the Civil Rights Act of 1964 relates to protections against discrimination due to sex or gender. The ADA or the Americans with Disabilities Act provides protections as well. This blog entry will provide some insights into the employer’s obligations under these laws.
My last blog focused on law related to sexual harassment. This blog entry will address the requirements of the ADA. The first element is the employee must come to the employer (or supervisor) and advise him or her of the need for some accommodation. I don’t know about anyone else, but I failed mind reading when I was in college. So the employee must initiate the conversation and reveal the need for the accommodation. When an employee comes to you, the owner or supervisor, and advises that he or she needs an accommodation to complete their work duties or responsibilities, the ADA requires you to consider an accommodation. The employer does not have to make the requested accommodation, but is required to consider it. This is Step 1 and it must be documented thoroughly. There are, to be sure, confidentiality rights to be adhered to as well.
Step 2 is the consideration part of the equation. The employer or supervisor must consider the accommodation and make a determination if it is reasonable. If management deems the accommodation reasonable, than the employee is notified that the request (for accommodation) has been approved. If it is deemed unreasonable, it obviously gets rejected. Here is the rub and this could precipitate Step 3: if the request for accommodation is rejected by management and the employee who made the request still feels the accommodation is necessary and reasonable, he or she has the recourse to petition the State Human Rights Commission and seek intervention.
This is not mediation, where both sides retain some control over the outcome. This is an arbitrated outcome with the Human Rights Commission deciding the outcome. Here, a fine could accompany the decision, if the HR Commission decides in the employee’s favor. Notice I said a fine could result.
So Step 3 could involve the State Human Rights Commission stepping in to decide if the request accommodation is reasonable or not.
Looking at what accommodation the transgendered employee might request, sometimes we see the restroom come into focus. The female-to-male employee might request to use the male’s restroom facilities or the male-to-female employee wishing to use the women’s restroom. No big deal here. Just install an “occupied /un-occupied” sign on the door so others will know that the restroom is occupied and the second person can make the decision to use another restroom or wait until the transgendered person is finished and exits the restroom. It’s not difficult.
My hope is that the employer keeps the drama on the “down low.” Making accommodations voluntarily is preferable to being forced to make them with the possibility of fines tagging along. Future blog entries will address additional accommodation possibilities and their solutions.
