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Developing a Strategy for Transgender Workers


Nesheba Kittling was quoted in Risk Management on September 1, 2015. The article “Developing a Strategy for Transgender Workers” examined a National Transgender Discrimination Survey that found that 90% of respondents were harassed or mistreated at work for being transgender or hid who they were to avoid such treatment, and 26% had lost a job because they were transgender.

Legal implications span far beyond government entities and federal contractors, including fines and enforcement actions against any corporation, according to Nesheba. “The EEOC can issue a commissioner’s charge and proceed with litigation, and the company is subject to all the damages available under Title VII, including back pay if the individual was terminated, front-pay, or punitive damages that are based on the size of the company,” she explained. “There is a cap on the possible damages, but it can be rather large, and we are already seeing a number of cases both filed and settled.” There could also be fines under OSHA for conditions that made an employee feel unsafe, she noted.

Given the spate of recent regulatory activity, she urges risk managers to focus on emerging guidance and their workplace policies, as both the stakes and scrutiny are growing rapidly. “I think they’re going to be very aggressive about it,” she said. “In its strategic enforcement plan, the EEOC specifically said that one of its goals is to provide more protection for the LGBT community, so it is actively trying to find cases to establish case authority that provides such protections. The same is true of OSHA as well.”

Regularly updating company policies and having employees sign a recognition of receipt and review is a critical step that should be taken immediately, and reassessed annually, she advised. “I think it’s all part of your EEO statement and your anti-discrimination and harassment statement,” she said. “I like to see explicit reference to gender identity in there and I personally list as many protected categories as possible in those statements. Then, if any issues arise, you can point to it as a clear expression of what your policy is.”

As transgender employees develop a larger presence in the workplace, education and sensitivity become even more critical in building a safe and compliant environment. “Training is key. The more you train employees, the better equipped they are to handle issues, and the more they become attuned to the sort of sensitivity that comes along with these issues that may not be as present in other matters,” Nesheba said.

More comprehensive training programs not only help prevent workplace problems, but may also help mitigate some of the risk if any do arise. “If you show that managers are being respectful, it can go a long way toward quashing certain situations,” she said. “If employees feel comfortable resolving problems internally rather than looking to an outside agency to file charges, there’s also no risk of fees or litigation.”

“Especially in light of Caitlyn Jenner and her new show, this is going to continue to be present and in people’s minds,” Nesheba said. “There are some people who are going to be uncomfortable with that and may bring that to the workplace. You want to quash anyone who is saying anything inappropriate or making jokes, and you want to do that early on. You need to send a message that it will not be allowed, because I can see that getting out of control quickly and there being harassment claims, especially in certain industries.”


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