Following Bostock, How Employers Can Lead the Way to Embrace Transgender Employees in the Workplace
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Following Bostock, How Employers Can Lead the Way
to Embrace Transgender Employees in the Workplace
Nanci K. Carr, J.D.*
2020 was quite a year! Yes, society endured the pandemic,1
but that was not the only news. After a split in the circuits
as well as inconsistency between states’ laws, the Supreme
Court of the United States finally held that workplace
discrimination against individuals who are transgender is
unlawful. In addition, the United States elected openly
transgender people to government offices and numerous
celebrities shared their transitions. The EEOC has identified
LGBTQ employees’ rights as an enforcement priority. These
are signals to U.S. companies that they must take steps to not
only comply with the law, but also develop policies and
training to embrace transgender people in the workplace.
I. BACKGROUND
Thirty-year-old Sarah McBride tweeted that 2020 was a year that showed
“an LGBTQ kid that our democracy is big enough for them, too.”2 Ms.
McBride, after being the first openly transgender3 White House employee
as an intern in President Obama’s administration,4 became the first
transgender state senator to be elected after winning her Delaware election
* Nanci K. Carr, is an Assistant Professor of Business Law and the Carande Family
Faculty Fellow at California State University, Northridge (“CSUN”). J.D., cum laude,
Southwestern Law School; B.S., Business Administration, Ball State University. Thanks
to research assistant Joe Lozano, CSUN Class of 2020.
1
The world continues to battle SARS-CoV-2 virus that causes coronavirus disease 2019,
nicknamed COVID-19. Coronavirus Disease 2019 (COVID-19) Situation Summary,
CDC.GOV (Mar. 3, 2020), https://www.cdc.gov/coronavirus/2019-ncov/summary.html.
2
Sen. Sarah McBride @SarahhMcBride, TWITTER (Nov. 3, 2020, 6:52 PM),
https://twitter.com/SarahEMcBride/status/1323805254081761282.
3
Glossary of Terms, HRC.ORG, https://www.hrc.org/resources/glossary-of-terms (last
visited Mar. 16, 2021) (defining transgender as “[a]n umbrella term for people whose
gender identity and/or expression is different from cultural expectations based on the sex
they were assigned at birth.”).
4
Gwen Aviles, Transgender Candidates Make Election History, HARPERSBAZAAR.COM
(Nov. 4, 2020, 11:02 AM EST),
https://www.harpersbazaar.com/culture/politics/a34567467/election-2020-trans-winners.[4-12-2021] Denver Law Review Forum 2
race.5 Other members of the transgender community won their races as well,
including Vermont’s Taylor Small, elected to the U.S. House of
Representatives, Stephanie Byers, the first trans person of color to be
elected to a state legislature in Kansas,6 and Mauree Turner, the first non-
binary candidate elected to a state legislature in Oklahoma.7 These election
wins came on the heels of the June 2020 decision in Bostock v. Clayton
County where the Supreme Court finally affirmed that Title VII of the Civil
Rights Act of 1964,8 which prohibits discrimination on the basis of sex, also
includes protection for homosexual and transgender employees.9 In
Bostock, three cases where employers fired employees for being gay or
transgender were joined.10 This landmark decision clarified a split in the
circuits as to whether homosexual and transgender people were protected
by Title VII.11
Shortly following the 2020 election news, well-known actor Elliot Page,
(best known for his roles in Juno and Umbrella Academy), announced that
he is transgender.12 In his announcement, Page said, “My privilege has
allowed me to have resources to get through and to be where I am today,
and of course I want to use that privilege and platform to help in the ways
I can.”13 Josie Lynne Paul, Chief Administrative Officer at Chicago House
5
Id.
6
Id.
7
Kelsie Smith, Mauree Turner is the First Nonbinary State Legislator and First Muslim
Oklahoma Lawmaker CNN (Nov. 5, 2020 9:47 AM),
https://www.cnn.com/2020/11/05/politics/first-nonbinary-and-muslim-oklahoma-
lawmaker/index.html.
8
Civil Rights Act of 1964, PUB. L. 88-352, 78 STAT. 241 (codified as 42 U.S.C.. §
2000e).
9
Bostock v. Clayton Cty, Ga. v. Zarda v. R.G. & G.R. Harris Funeral Homes, Inc. v.
EEOC, 140 S.Ct. 1733 (2020) (deciding three consolidated cases regarding employees
who were fired due to their LGBTQ status). A Michigan funeral home paid $250,000 to
the estate of Aimee Stephens, a transgender funeral director, and as a result, according to
EEOC trial attorney Dale Price, “the law is now clear that discrimination against an
employee because of his or her transgender status is sex discrimination.” Reuters,
Funeral Home Settles Landmark Transgender Bias Case for $250,000 , NBCNEWS.COM
(Dec. 2, 2020, 7:55 AM PST), https://www.nbcnews.com/feature/nbc-out/funeral-home-
settles-landmark-transgender-bias-case-250-000-n1249700.
10
Id.
11
Id.
12
Sara M Moniuszko, Elliot Page Covers Time Magazine, Talks Coming Out and Trans
Equality: 'I’m fully who I am', USA TODAY (Mar. 16, 2021 8:10 AM),
https://www.usatoday.com/story/entertainment/celebrities/2021/03/16/elliot-page-time-
magazine-talks-coming-out-transgender-acting/4713873001/ .
13
Id.3 Denver Law Review Forum [4-12-2021]
who transformed the TransCare Life Program, expanding access to HIV
prevention and serving over 300 clients,14 expressed she would have
appreciated an easier time if transitions were more public but instead
experienced a mix of reactions at work after transitioning, with some
colleagues expressing kindness but others discomfort.15 According to the
National Center for Transgender Equality, “more than one in four
transgender people have lost a job due to bias, and more than three-fourths
have experienced some form of workplace discrimination.”16 Seventy-seven
percent of those participating in a survey by the National Center for
Transgender Equality stated they had taken steps like delaying or hiding
their gender transition to avoid workplace mistreatment.17 Not only are
transitions challenging for the transgender employee, but also for co-
workers who may not know how to embrace a colleague on a trans journey.
Employers may not know how to guide their employees to not only comply
with the law, but to create a positive and productive workplace. This Article
explores some of the challenges employers and employees face as
individuals transition within the workplace and offers guidance for policies
and training that employers should adopt for their workplaces.
II. DEVELOP POLICIES
Discrimination against employees based on gender identity is prohibited in
both hiring and employment practices; therefore, companies need to develop
anti-discrimination and anti-harassment policies that include gender identity
14
Jose Lynne Paul, CHICAGO HOUSE, https://www.chicagohouse.org/josie-lynne-paul
(last visited Mar. 16, 2021).
15
Alexia Elejalde-Ruiz, How Companies Accommodate Transgender Employees – and
Their Colleagues, CHICAGOTRIBUNE.COM (Jan. 9, 2016, 5:20 AM),
https://www.chicagotribune.com/business/ct-transgender-workplace-0110-biz-20160109-
story.html(noting that Ms. Paul said in hindsight that she should have started the
workplace conversation earlier in her transition, which might have prevented some of the
hurtful rumors).
16
Issues/Employment, NATIONAL CENTER FOR TRANSGENDER EQUALITY,
https://transequality.org/issues /employment, (last visited Dec. 31, 2020).
17
THE REPORT OF THE 2016 U.S. TRANSGENDER SURVEY, NATIONAL CENTER FOR
TRANSGENDER EQUALITY 13 (2015) available at
https://transequality.org/sites/default/files/docs/usts/USTS-Full-Report-Dec17.pdf. See
also, e.g., Elejalde-Ruiz supra note 4 (describing Chloe’s journey, a copyrighter at ad
agency Leo Burnett, who said she had been terrified throughout her life of coming out,
and that she “worried that transitioning could damage her career or distract from the
reputation she’d built.”)[4-12-2021] Denver Law Review Forum 4 as well as gender expression.18 Such policies might have helped Jane Doe, a transgender cashier who formerly worked at the Dunkin’ Donuts in Bethlehem, Pennsylvania, who alleged that she was fired after complaining that managers at the store did not prevent harassment from customers and coworkers.19 Additionally, she alleged that she was terminated due to her gender identity.20 Dunkin Donut’s spokeswoman, Michelle King, noted that its locations are independently owned and operated, but that from a corporate standpoint, "We and our franchisees pride ourselves in our diverse workforces, and we strive to create inclusive work cultures. Our franchisees are required by their franchise agreement to comply with all applicable laws.”21 While that may be corporate policy, Doe successfully overcame Dunkin’ Donuts motion to dismiss based on her claim that her employer failed to make reasonable accommodations as required by the Americans with Disabilities Act (ADA).22 The ADA recommends to provide reasonable accommodations, “it may be necessary for the covered entity to initiate an informal, interactive process 18 Bostock v. Clayton Cty, Ga. v. Zarda v. R.G. & G.R. Harris Funeral Homes, Inc. v. EEOC, 140 S.Ct. 1733 (2020); Gonzalez, infra note 82. See Glossary of Terms, supra note 4 (defining gender identity as “[o]ne’s innermost concept of self as male, female, a blend of both or neither – how individuals perceive themselves and what they call themselves. One's gender identity can be the same or different from their sex assigned at birth” and gender expression as “[e]xternal appearance of one's gender identity, usually expressed through behavior, clothing, body characteristics or voice, and which may or may not conform to socially defined behaviors and characteristics typically associated with being either masculine or feminine”). 19 Doe v Triangle Doughnuts, LLC, 472 F. Supp. 3d 115, 122 (E.D. Pa. July 16, 2020) (Triangle Doughnuts LLS operates Dunkin’ Donuts); see also Elliot C. McLaughlin, Transgender Ex-Cashier Sues Dunkin' Donuts, Saying Managers let Coworkers and Patrons Harass her, Then Fired her, CNN (Nov. 13, 2019, 3:55 PM), https://www.cnn.com/2019/11/13/us/dunkin-donuts-transgender-lawsuit- pennsylvania/index.html (noting that her requests for use of her preferred name and pronouns were refused and she was instructed to use the men’s restroom). 20 Triangle Doughnuts, LLC, 472 F. Supp. 3d at 123. 21 Id. at 142. See also, Elliot C. McLaughlin supra note 18. 22 The court granted the employer’s motion to dismiss on claims of race-based hostile work environment, discrimination, and retaliation, however, the court denied the motion to dismiss as to Doe’s claims of failure to accommodate based on two disabilities: HIV- positive and gender dysphoria. Id. at 140-42. (quoting the ADA by stating that an employer violates the ADA when it fails to make “reasonable accommodations to the known physical or mental limitations of an otherwise qualified individual with a disability who is an applicant or employee, unless such covered entity can demonstrate that the accommodation would impose an undue hardship on the operation of the business of such covered entity.” 42 U.S.C.§12112(b)(5)(A)).
5 Denver Law Review Forum [4-12-2021] with the individual with a disability in need of the accommodation. This process should identify the precise limitations resulting from the disability and potential reasonable accommodations that could overcome those limitations.”23 While LGBTQIA advocates may argue that being transgender is not a disability,24 the ADA regulations can still offer guidance, which is that involving transgender employees in the discussion of what policies and training are needed may be helpful. These policies should be developed in advance, not once a problem has arisen, to prevent workplace disruption that can arise from improper management of employees who identify as transgender in the workplace.25 Professor Arthur Leonard of the New York School of Law, who founded the LGBT Bar Association of Greater New York, said that “it’s best for employers to proactively create a health work atmosphere and deter any such [discrimination] claims than have to react to defend them later.”26 To signal a strong message of support and set examples for all employees, companies will want to be sure to involve senior management while drafting and implementing these policies.27 Companies have successfully implemented policies to create a safe work environment for all individuals by external guidance from an LGBTQ group like Pride at Work or the 23 29 C.F.R. §1630.2(o)(3). 24 Brief of Amici Curiae Gay & Lesbian Advocates & Defenders Mazzoni Center, National Center for Lesbian Rights, National Center for Transgender Equality, National LGBTQ Task Force, and Transgender Law Center in Opposition to Defendant's Partial Motion to Dismiss, 2015 WL 1360212, No. 14-4822, at * (Feb. 23, 2015). 25 While the Evanston-Skokie School District 65 in Illinois amended its workplace discrimination and harassment policy to specifically include gender identity, transgender teacher Ren Heckathorne said it was too little too late after they had reported more than a dozen gender identity related incidents over a period of three years. Karen Ann Cullotta, A Transgender Teacher in Evanston Says Their School District has been Slow to Address Gender Identity Concerns, CHICAGOTRIBUNE.COM (Oct. 24, 2019), https://www.chicagotribune.com/suburbs/evanston/ct-evr-transgender-teacher- harassment-tl-1024-20191024-2fqsygspq5dndhallo67gpt4k4-story.html. 26 Taryn Phaneuf, Federal Judge: Law Protects Against Transgender Discrimination , LEGALNEWSLINE.COM (Apr. 18, 2016), https://legalnewsline.com/stories/510715259- federal-judge-law-protects-against-transgender-discrimination. The Transgender Law Center is available to guide the development of anti-discrimination employment policies. See TRANSGENDERLAWCENTER.ORG, https://transgenderlawcenter.org/ resources/employment/modelpolicy#:~:text=ModelEmployerPolicy TransgenderLawCenterisproud, andincludetransgenderCgendernon- conformingCandtransitioningemployees (last visited Dec. 30, 2020). 27 Cf. Juliet Bourke & Andrea Titus, The Key to Inclusive Leadership, HARV. BUS. REV. (Mar. 6, 2020), https://hbr.org/2020/03/the-key-to-inclusive- leadership?registration=success.
[4-12-2021] Denver Law Review Forum 6
National Center for Transgender Equality and obtaining input from their
own transgender employees with their consent.28
However, “[o]ne of the biggest but well-intentioned mistakes is to be overly
reliant on the one employee for education and guidance,” offered Deena
Fidas, director of the Workplace Equality Program at the Human Rights
Campaign.29 After joining the Sam’s Club in Kannapolis, North Carolina in
2004 as a cashier, Charlene Bost was recognized as an exemplary employee
and was promoted to a supervisory role within four years.30 Around the time
of her promotion, she explained to colleagues that she was a transgender
woman and began wearing a longer hair style, makeup and perfume.31 She
asked that her name badge be changed to her newname, which Sam’s Club
honored.32 While coworkers and customers were initially supportive, as
time went on, they increasingly harassed Ms. Bost.33 At the end of 2017,
Bost filed in federal court alleging her employer violated Title VII.34 She
and Sam’s Club settled six months later.35 The burden of educating
supervisors and employees about how to work with transgender people
cannot be left to Ms. Bost or others like her. In addition, it is important to
remember that while some transgender employees may want to take an
active role in policy development and workplace training, others may prefer
to transition out of the spotlight. Transgender employees should be invited
to participate in the development of workplace policies, but it should not be
their burden to bear; employers are responsible for ensuring safe
workplaces.
Employers need to have policies and practices to ensure they avoid
discriminating against employees who initially present as one gender during
28
Meera Jagannathan, 12 Ways to Make Your Workplace More Inclusive of Transgender
People, MARKETWATCH.COM (Apr. 23, 2019, 2:14 p.m.)
https://www.marketwatch.com/story/12-simple-ways-to-make-your-workplace-more-
inclusive-of-transgender-people-2018-11-12.
29
Elejalde-Ruiz supra note 4.
30
Shayna Posses, Sam’s Club Settles Bias Suit With Transgender Worker , LAW360 (June
7, 2018, 6:27 PM EDT), https://www.law360.com/retail/articles/1051231.
31
Id.; MGShare, Lawsuit: Sam’s Club Discriminated Against Transgender Worker ,
KSN.COM (Dec. 27, 2017, 7:53 PM CST), https://www.ksn.com/news/national-
world/lawsuit-sams-club-discriminated-against-transgender-worker/.
32
Lawsuit: Sam’s Club Discriminated Against Transgender Worker , supra note 30.
33
Id.
34
Compl., Charlene Bost v. Sam’s East, Inc.; and Wal-Mart Associates, Inc., ¶ 1, No.
1:17-cv-1148, WL 6610357 (D.C. M. D. N.C. Dec. 27, 2017).
35
Posses, supra note 29.7 Denver Law Review Forum [4-12-2021]
the interviewing stage, and then transition by their start date or later in their
employment. Additionally, employers as well as other employees need to
be aware of how to treat a transitioning employee without discrimination.
For example, Dr. David Fabian interviewed for a position at Delphi
Healthcare Partners, Inc. in Connecticut as an orthopedic surgeon.36 After
receiving a contract with a start date, she sold her house in Massachusetts,
moved to Connecticut, and advised a subsequent interviewer that she was a
transgender woman and would work at the hospital as Dr. Deborah Fabian.37
After being denied the position, she sued for violations of Title VII and
Connecticut law.38 As such, employers should we aware that if an employee
presents as one gender in an interview, but transitions prior to hiring,
denying the individual the job on that basis alone is a form of
discrimination.39
III. ELEMENTS OF POLICIES
Once employers have agreed that policies are necessary, they must define
elements of those policies. Employers may want to consider policies relating
to name change, pronoun usage, dress codes, healthcare and healthcare
insurance, and restrooms.
A. Name and pronouns
Employers can promote inclusive workplace practices by including policies
on name changes and requiring universal pronoun usage. Employers can
allow employees to change their name on company identification badges and
email addresses even without the employee making official changes on tax
and insurance forms.40 Next, companies can encourage all employees to
include gender pronouns in their email addresses, name tags, and business
cards, and create an environment where everyone, executives included,
introduce themselves with their name and pronouns at company meetings
36
Fabian v. Hosp.l of Cent. Conn., 172 F. Supp. 3d 509, 512 ( D.C. D. Conn. Mar.
18, 2016).
37
Id. at 513.
38
Id. at 511-512. The district denied the hospital’s motion for summary judgment. Id. at
528.
39
Id. at 527-28.
40
Elejalde-Ruiz supra note 4.[4-12-2021] Denver Law Review Forum 8
and events.41 This practice promotes inclusion for all employees without
isolating the transgender employee.
Employers should also review their appearance policies such as dress codes.
For example, in New York City, employers cannot prohibit employees from
using makeup, wigs, or hairpieces based on their anatomy or gender
assigned at birth.42 In addition, while employers can require appropriate
dress based on job duties, they should not include gender-specific
requirements or restrictions in their policies.43
Air Canada has extended its approach to a gender inclusive work
environment beyond employees to its customers as well, by greeting
passengers as “everybody” instead of “ladies and gentlemen.”44 Similarly,
the colloquial “hey guys” is losing popularity with one employer
recommending “folks” and “y’all” as substitutes.45 Policies like these
encourage change not only within a company, but within society also.
However, implementing such policies is not without hurdles. West Point
High School in West Point, Virginia had a policy regarding pronouns, not
only for its employees, but also for its students.46 Enforcing its policy
Yuki Noguchi, 5 Ways To Make The Office More Welcoming For People Of All
41
Gender Identities, NPR.ORG (Oct. 16, 2019, 5:02 AM),
https://www.npr.org/2019/10/16/768421343/5-ways-to-make-the-office-more-
welcoming-for-people-of-all-gender-identities. See also Ashlee Fowlkes, Why you
Should Not Say ‘Preferred Gender Pronouns, ’ FORBES (Feb. 27, 2020, 10:22 PM EST),
https://www.forbes.com/sites/ashleefowlkes/2020/02/27/why-you-should-not-say-
preferred-gender-pronouns/.
42
N.Y.C. Admin. Code § § 8-101-2, (defining gender as includes actual or perceived
sex, gender identity and gender expression, including a person's actual or perceived
gender-related self-image, appearance, behavior, expression or other gender-related
characteristic, regardless of the sex assigned to that person at birth.”.
43
Id.
Marie Claire Dorking, Air Canada to Use Gender-Neutral Terms on Flights Instead of
44
Greeting Passengers 'Ladies and Gentlemen', YAHOO.COM (Oct 16, 2019),
https://in.style.yahoo.com/air-canada-gender-neutral-ladies-gentlemen-banned-
101135950.html.
45
Joe Pinsker, The Problem with ‘Hey Guys,’ THE ATLANTIC (Aug. 23, 2018),
https://www.theatlantic.com/family/archive/2018/08/guys-gender-neutral/568231/
(noting that guys is a symbol of exclusion, both to transgender people but also to women
in male dominated companies).
46
Teo Armus, A Virginia teacher was Fired for Refusing to use a Trans Student’s
Pronouns. Now, He’s Suing His School District, WASHINGTON POST (Oct. 1, 2019,
(9:20 PM MDT), https://www.washingtonpost.com/nation/2019/10/01/virginia-teacher-
fired-not-using-transgender-pronouns-sues-school/ .9 Denver Law Review Forum [4-12-2021]
prohibiting discrimination on the basis of gender identity, West Point
terminated French teacher Peter Vlaming for his refusal to use a trans male
ninth-grader’s male pronouns.47 The student and his parents complained that
Vlaming’s refusal to use his pronouns created a hostile learning
environment.48 Vlaming filed suit for wrongful termination, stating that his
“conscience and religious practice prohibit[ed] him from intentionally
lying”49 He argued that the school board infringed on his constitutional
rights by limiting his speech.50 The school board enforced consequences
for violation of its policy, but in so doing, is now embroiled in a lawsuit.51
B. Health issues
Some workplace issues arise when cisgender employees ask inappropriate
questions regarding transgender employees’ birth names, sex assigned at
birth, and surgical status. Employers need to remember and advise their
managers and employees that conversations about medical procedures
violate federal health privacy laws.52 Laverne Cox, a well-known
transgender actress, stated that she was asked invasive questions during
auditions regarding her surgeries.53 To prevent such inappropriate
conversations that are forms of microaggressions, it is best practice for
companies to include in their policies that invasive questions such as those
about surgical status and appearance, are inappropriate when asked to any
employee.54 Jerame Davis, executive director of the AFL-CIO constituency
group Pride at Work, stated that a simple rule-of-thumb companies can
47
Id.
48
Id.
49
Vlaming believed referring to a student who he perceived to be a female as a male by
using an objectively male pronoun is telling a lie. Id. (noting that Vlaming agreed to call
the student by his male name, only refusing to use the male pronouns. The firing
occurred after Vlaming shouted “Don’t let her hit the wall” during an in-class virtual
reality exercise.)
50
Id. Vlaming sought federal court review, but the district court lacked jurisdiction, so
the case continues in state court. Vlaming v. West Point School Board, 480 F. Supp.
711, 724 (D.C. E.D. Va. Aug. 19, 2020).
51
At the time of publication, the lawsuit was not resolved.
52
Health Insurance Portability and Accountability Act of 1996, 45 CFR §160.103.
53
Jude Dry, Despite Progress, Hollywood’s Most Famous Trans Actors Are Still
Struggling to Find Work,
INDIEWIRE.COM (Oct. 24, 2019, 1:30 PM), https://www.indiewire.com/2019/10/trans-
actors-hollywood-transgender-lgbt-laverne-cox-1202184401/.
54
Canela López & Marguerite Ward, 13 Things You Should Never Say to Your LGBTQ
Coworkers, BUSINESS INSIDER (June 5, 2020, 10:25 AM),
https://www.businessinsider.com/lgbtq-workers-discrimination-things-not-to-say-2019-9.[4-12-2021] Denver Law Review Forum 10
promote in the workplace to protect transgender employees is “don’t ask a
transgender person anything you wouldn’t feel comfortable being asked
yourself.”55 In addition, it is important to have an antenna up for
unconscious biases, which is a form of discrimination that is not as
predictable as cognitive bias.56 For example, using a gender slur is a
cognitive bias that should obviously be avoided, however, moving a
transitioning worker to a post that does not involve direct client interaction
is an unconscious bias that may take more care to prevent.57
C. Healthcare plans should be gender inclusive
While the Trump administration tried to end transgender healthcare
protections, a federal judge blocked those efforts.58 Transgender people
face several obstacles and barriers related to accessing proper healthcare
and often require more coverage than what most employer health plans
normally offer.59 One leading example is Starbucks, which provides a
comprehensive health insurance plan for transgender individuals that covers
cosmetic surgeries such as breast reduction, facial feminization,
55
Jagannathan, supra note 27.
56
Gleb Tsipursky, Ph.D, What is Unconscious Bias (And How You Can Defeat It),
PSYCHOLOGY TODAY (July 13, 2020)
https://www.psychologytoday.com/us/blog/intentional-insights/202007/what-is-
unconscious-bias-and-how-you-can-defeat-it.
57
Elejalde-Ruiz supra note 15.
58
Walker & Gentili v. Azar, No. 20-CV-2834 (FB) (SMG) (D.C. E.D. NY Aug. 17,
2020), available at https://hrc-prod-requests.s3-us-west-
2.amazonaws.com/123116892418.pdf. See also Samantha Schmidt, Federal Judge Blocks
Trump Administration from Ending Transgender Health-Care Protections, WASH. POST
(Aug. 17, 2020, 3:21 PM PDT), https://www.washingtonpost.com/dc-md-
va/2020/08/17/federal-judge-blocks-trump-administration-ending-transgender-healthcare-
protections/; Alison DeNisco Rayome, How to Create a More Inclusive Workplace for
LGBTQ Employees, TECHRPUBLIC.COM (Oct. 25, 2019, 12:08 PM),
https://www.techrepublic.com/article/how-to-create-a-more-inclusive-workplace-for-
lgbtq-employees/ (noting that “[t]ransgender-inclusive healthcare coverage means
providing the same benefits for a diagnosis of gender dysphoria (what the American
Psychiatric Association defines as a condition where someone experiences discomfort or
distress because there’s a conflict between their biological sex and gender identity) than
an employee would receive for any other diagnosis.”)
59
Rayome, supra note 56; Nico Calvo Rosenstone, ‘Trans-forming’ the Workplace to Be
Transgender Inclusive, SSIR.ORG (Mar. 29, 2019)
https://ssir.org/articles/entry/trans_forming_the_workplace_to_be_
transgender_inclusive#.11 Denver Law Review Forum [4-12-2021]
augmentation surgery, and hair transplants.60 Healthcare plans like these
indicate to Starbucks employees that they matter and their employer
prioritizes their health.61
D. Restrooms
The Occupational Safety and Health Administration (OSHA), an agency of
the U.S. Department of Labor, “requires employers to provide their
employees with toilet facilities”62 as a basic condition of employment.
Further, OSHA prohibits employers from putting “unreasonable
restrictions” on employees’ restroom access.63 It follows, then, that
requiring a transgender employee to use a restroom corresponding to their
sex assigned at birth may “unreasonably restrict” that individual’s access to
employer restrooms. If non-transgender employees object to shared
restrooms, then employers may offer all employees an alternative, such as
a gender-neutral restroom.64 Leanna Newman, who works with the
nonprofit Out in Tech, says that “the very bare minimum [for companies]
is to have a designated single stalled restroom that is also accessible.”65 It
is important to note that employees cannot be asked to provide “any medical
or legal documentation of their gender identity in order to have access to
gender-appropriate facilities” and “no employee should be required to use
a segregated facility apart from other employees because of their gender
identity or transgender status.”66 Intel Corporation has implemented
appropriate restroom guidelines to support transgender workers, including
“All Gender Restrooms.”67 “Intel’s policy for the past several years is that
anyone can use any restroom that corresponds to the gender with which they
identify, regardless of their birth assigned gender. We provide all gender
60
Linda Dahlstrom, They are Lifesaving’: Starbucks Offers Expanded Benefits for Trans
People, STARBUCKS (June 25, 2018), https://stories.starbucks.com/stories/2018/they-are-
lifesaving-starbucks-offers-expanded-benefits-for-trans-people/.
61
Id.
62
OSHA, BEST PRACTICES: A GUIDE TO RESTROOM ACCESS FOR TRANSGENDER
WORKERS 3 available at https://www.osha.gov/Publications/OSHA3795.pdf (hereinafter
BEST PRACTICES) .
63
Id. at 1.
64
Id. at 3.
65
Rayome, supra note 56.
66
BEST PRACTICES, supra note 60 at 2.
67
Human Rights at Intel: A Community of Inclusion and Respect (Part 3) , INTEL (Dec.
21, 2017), https://blogs.intel.com/jobs/2017/12/a-community-of-inclusion-and-
respect/#gs.ttg40l.[4-12-2021] Denver Law Review Forum 12 restrooms for the convenience, comfort, and inclusion of our employees, contractors, and guests.”68 Similar guidelines could have prevented the unfortunate situation in Albuquerque, New Mexico when diesel technician Diane Roberts announced her transition to her former employer, ABF Freight Inc.69 After her transition, she was the only female employee, so she requested the company to arrange for a restroom to be converted [to a female or gender neutral restroom], a female uniform, and a few days off so the company could inform her coworkers of her transition and explain its anti- discrimination protocols.70 However, the company denied the accommodations, and Roberts endured harassment at the hands of her coworkers.71 After missing too many work days due to stress, ABF Freight fired Roberts.72 She filed a complaint with the Human Rights Bureau of the New Mexico Department of Workforce Solutions and later filed a civil claim in which the American Civil Liberties Union represented her.73 Alternatively, in 2016 Target announced that transgender workers and customers may use the restroom that is aligned with their gender identity.74 Several state courts have found that denying this accommodation violates state law. For example, a jury in Iowa awarded nurse Jesse Vroegh75 $120,000 in damages because it found that the state of Iowa discriminated 68 Id.; In 2005, Intel recommended “transgender employees use the restroom of their target sex after a name change and change in dress. A switch in showering facilities follows surgery.” Id. https://www.nytimes.com/2005/07/31/jobs/an-employee-hired-as- a-man-becomes-a-woman-now-what.html. 69 Daniel Villarreal, A Trans Woman’s Coworkers Terrorized Her & Vandalized the Workplace. Her Boss Fired Her, LGBTQNATION.COM (Oct. 30, 2019), https://www.lgbtqnation.com/2019/10/trans-womans-coworkers-terrorized-vandalized- workplace-boss-fired/. 70 Id. (noting that Roberts suggested that the company use resources from the Transgender Resource Center of New Mexico to develop the protocols, but it did not). 71 Id. 72 Id. 73 Id. 74 Phil Wahba, Target to Allow Transgender People to Use Bathroom of Their Choice, FORTUNE.COM (Apr. 19, 2016, 2:12 PM PDT), https://fortune.com/2016/04/19/target- transgender-bathroom/, (noting that Target would also phase out “gender-specific signage in store aisles that carry kids’ toys, bedding, and books”). 75 While Vroegh was assigned female at birth, he identified as male since he was seven. Vroegh v. Iowa Dept. of Corr. No. LACL138797, 2019 WL 1396872, *1 (D. C. Iowa Jan. 23, 2019).
13 Denver Law Review Forum [4-12-2021]
against Vroegh by forcing him to use a female restroom and denying him
health coverage for transition-related surgeries.76
IV. TRAINING EMPLOYEES
Renetta McCann, chief talent officer of Leo Burnett, explained that a
challenge of implanting these policies is "managing it at the human level,
being sensitive to the person who is transitioning and understanding what it
means to be the people around them."77 It is not enough for employers to
draft said policies, but rather they must implement and train employees
before an incident occurs. Starbucks learned that lesson when employees
engaged in racially discriminatory conduct at a Philadelphia store in April
of 2018.78 There was such public outrage that Starbucks had to close 8000
of its stores for staff training on discrimination.79
Several states do require some sort of anti-discrimination or sexual
harassment training in the workplace. California, for example, recently
included transgender and gender nonconforming individuals as required
topics in sexual harassment training for employers subject to the state’s
mandatory sexual harassment training.80 Companies that are not bound by a
mandated state training may design their own education programs.81 For
76
Vroegh v. Iowa Dept. of Corr., No. LACL138797, 2019 WL 1396873 (D. C. Iowa,
Feb. 19, 2019).
77
Elejalde-Ruiz supra note 4 (noting that Leo Burnett published guidelines on its intranet
site for transitioning employees, their managers and co-workers).
78
Shep Hyken, Starbucks Closes 8,000 Stores For Racial Bias Training -- Is It Enough,
FORBES.COM (June 1, 2018, 4:05 AM),
https://www.forbes.com/sites/shephyken/2018/06/01/starbucks-closes-8000-stores-for-
racial-bias-training-is-it-enough/#4ba2cb692831.
79
Id.
80
Cal. S.B. 393 Employment: gender identity, gender expression, and sexual orientation
(Cal. Gen. Sess. 2017-2018) codified as Cal. Gov. Code §§ 12950, 12950.1. Michelle E.
Phillips, Cary G. Palmer and Sierra Vierra, California Adds ‘Transgender,’ ‘Gender
Nonconforming Individuals’ to Sexual Harassment Prevention Training for Supervisors ,
JACKSONLEWIS.COM (Oct. 24, 2017),
https://www.jacksonlewis.com/publication/california-adds-transgender-gender-
nonconforming-individuals-sexual-harassment-prevention-training-supervisors; Allen
Smith, J.D., How to Accommodate ‘Gender-NonBinary’ Individuals-Neither Men nor
Women, SHRM.ORG (Feb. 16, 2018), https://www.shrm.org/resourcesandtools/legal-
and-compliance/employment-law/pages/gender-nonbinary-individuals.aspx.
81
Haley Cawthon, LGBTQ Platform Launches Workplace Trans Inclusivity Training,
LOUISVILLE BUSINESS FIRST (Nov. 26, 2019, 6:00 AM),
https://www.bizjournals.com/louisville/news/2019/11/26/lgbtq-platform-launches-[4-12-2021] Denver Law Review Forum 14 assistance with such design, Rachel A. Gonzalez and Arianna Mouré of the law firm Day Pitney LLP drafted a detailed analysis of what to cover in the training program, including a reminder that discrimination and harassment will not be tolerated.82 Employers can add training to a company or school’s website to begin the process of education toward inclusiveness. For example, California State University, Northridge has created a website for training its employees, faculty, staff, and students about inclusiveness and why pronouns matter, noting that “when someone is referred to with the wrong pronoun, it can make the individual feel disrespected, invalidated dismissed, alienated, or hurt” and that “sharing our pronouns and correctly using other people’s pronouns sets a tone of inclusion.”83 Apple notes on its website that it “deeply respects that gender is not binary.”84 Google has a webpage devoted to its support of the transgender community, noting that “we build our products for everyone, and this includes the trans community.”85 Los Angeles-based organization Trans Can Work has developed a toolkit to help employers with training which includes job announcements with inclusive language, tools on inclusive pronouns, and websites designs that relate to the transgender community.86 workplace-trans.html. It is always better to train before a problem arises, rather than after, as was the case with Applebee’s, who gave workers a policy blocking gender identity-based harassment in addition to providing anti-discrimination training to managers and human resources workers after paying $100,000 to settle a lawsuit filed by Danielle Feola, a transgender hostess at a Hawthorne, New York Applebee’s in 2015 who was fired after complaining of gender based harassment by colleagues. Braden Campbell, Applebee’s Hostess to Receive $100K in Trans Bias Case , LAW360 (Oct. 26, 2018, 7:42 PM EDT), https://www.law360.com/foodbeverage/ articles/1096189. 82 Rachel A. Gonzalez and Arianna Mouré, Demystifying Employers' Obligations To Transgender And Non-Binary Employees, DAYPITNEY.COM (Jul. 10, 2019), https://www.daypitney.com/insights/publications/ 2019/06/elqu8-demystifying- employers-obligations?utm_source=Mondaq&utm_medium =syndication&utm_campaign=LinkedIn-integration. 83 Why Pronouns Matter for Everyone, CSUN.EDU, (last visited Dec. 29, 2020) (“California State University Executive Orders 1096 and 1097 protect students, faculty, and staff from discrimination based on gender). 84 Different together, APPLE.COM, (last visited Dec. 29, 2020). 85 How We’re Supporting the Transgender Community, GOOGLE.COM, https://blog.google/outreach-initiatives/diversity/transgender-awareness-2020/, (last visited Dec. 29, 2020). 86 Molly Sprayregen, Trans Can Work’s VP of Programming on Fostering an Inclusive Workplace, FORBES.COM (Nov. 25, 2020, 11:17am EST), https://www.forbes.com/sites/mollysprayregen/2020/11/25/trans-can-works-vp-of- programming-on-fostering-an-inclusive-workplace/?sh=257b56666c83, (noting that a
15 Denver Law Review Forum [4-12-2021]
Angelica Ross, an actress known for American Horror Story and Pose, is
the CEO and founder of TransTech, an organization providing education,
support, and jobs for trans individuals. 87 Badmaash, a downtown Los
Angeles restaurant, notes on its website that it is a transgender safespace.88
The Washington Wizards invited Riley Knoxx to be the first the first openly
transgender woman to perform at an NBA halftime show.89
V. CONCLUSION
While companies have made some progress toward anti-discrimination
policies for its trans employees, in Bostock, the Supreme Court
unequivocally indicated that additional progress must be made to protect
trans employees.90 This benefits both trans employees and the employer.
Companies have found that nondiscrimination policies have “improve[d]
recruitment and retention of not just transgender employees, but also ‘other
fair-minded employees.’”91 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 greater
probability of employee retention.92
***
partnership with the City of West Hollywood and the West Hollywood Chamber of
Commerce provided funding for a quarterly series of inclusion trainings with a hundred
local employers).
87
TRANSTECH SOCIAL ENTERPRISES, https://www.transtechsocial.org/about-the-
company/, (last visited Dec. 29, 2020).
88
Badmaash, GOOGLE MAPS
https://www.google.com/maps/place/BADMAASH+Downtown +LA/@34.0649351,-
118.3730675,12z/data=!4m9!1m2!2m1!1sbadmaash!3m5!1s0x80c2c70c7b0742ab:0x
56164f85adb8c160!8m2!3d34.0511033!4d-118.2448571!10e1 (last visited Jan. 2, 2021).
89
Abby Cruz, First Openly Transgender Woman Set to Perform During NBA Halftime
Show at Washington Wizards Game, YAHOO.COM (Mar. 6, 2020),
https://www.transtechsocial.org/about-the-company/.
90
Bostock v. Clayton Cty, Ga. v. Zarda v. R.G. & G.R. Harris Funeral Homes, Inc. v.
EEOC, 140 S.Ct. 1733 (2020).
91
Brittany Ems, Preparing the Workplace for Transition: A Solution to Employment
Discrimination Based on Gender Identity, 54 ST. LOUIS U.L.J. 1329, 1354 (citing Human
Rights Campaign Found., Transgender Inclusion in the Workplace 14 (2d ed. 2008)).
92
Executive Summary, SHRM’s Effective Workplace Index: Creating a Workplace that
Works for Employees and Employers, SHRM.ORG, (July 25, 2017),
https://www.shrm.org/hr-today/trends-and-forecasting/research-and-
surveys/pages/national-study-of-the-changing-workforce.aspx.You can also read
