When You Hire Mike But Get Mary

When supporting transgender candidates and employees, there are both legal and moral matters to consider.

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Jul 24, 2023

Consider the following scenario. Mike Smith applies for a job opening. He successfully navigates several rounds of in-person interviews, and you decide he’s the best-qualified person for the job. As a result, you offer Mike the position, and he accepts.

On Mike’s first day of work, however, Mike doesn’t show up. Mary does. Mary tells you, “In the interim between when I interviewed and today, I’ve transitioned my gender. I’m no longer Mike. I’m now Mary.”

What do you do?

Absolutely nothing…other than welcome Mary to the company and onboarding her like you would any other employee. It’s both the legally compliant reaction and the morally correct reaction.

Legal Compliance

In Bostock v. Clayton County, the Supreme Court held that treating individuals differently because of their transgender status violates Title VII’s prohibition on sex discrimination. As the Court stated:

An employer who fires an individual for being…transgender fires that person for traits or actions it would not have questioned in members of a different sex. Sex plays a necessary and undisguisable role in the decision, exactly what Title VII forbids…. It is impossible to discriminate against a person for being…transgender without discriminating against that individual based on sex.

Transgender discrimination is sex discrimination under Title VII. Hard stop. If you rescind a job offer because someone presents on their first day of work as the opposite gender from that which they presented during their job interview, you are unlawfully discriminating against them because of their sex.

Moral Imperative

Transgender people are under attack. They often experience discrimination, harassment, and a lack of understanding, including from their work colleagues and bosses. As an employer, it is important to create a safe and inclusive environment for all employees, including those who identify as transgender or gender-nonconforming.

Here are 10 steps you can take to support transgender and gender-nonconforming employees at work:

1. Educate yourself. Take the time to educate yourself about transgender issues, including terminology, challenges faced by trans individuals, and best practices for inclusion. This will help you better understand the experiences of trans employees and foster a supportive and welcoming environment.

2. Foster a culture of respect. Encourage respectful behavior and language throughout the workplace. Train employees on appropriate terminology and use of preferred pronouns, bathrooms, and locker rooms. Make it clear that you will not tolerate disrespectful or discriminatory behavior, which is grounds for discipline or termination. Inclusivity starts at the top. If the C-suite acts as outspoken advocates and allies for transgender employees within the workplace, its attitude should filter throughout the organization.

3. Provide inclusive policies and benefits. Review and update company policies to ensure that they are inclusive and support gender identity, such as guidelines for transitioning on the job, restroom and locker-room access, dress codes, and pronouns. It also includes updating your existing EEO and anti-harassment policies to ensure that they include “gender identity” as a protected class. Also consider offering comprehensive benefits that cover gender-affirming healthcare, including hormone therapy and gender-confirmation surgery.

4. Offer gender transition support. If an employee decides to transition, ensure they have access to appropriate resources and support. Maintain confidentiality and respect their privacy throughout the process. Offer guidance on name and gender marker changes in company records, email systems, and identification documents.

5. Implement training programs. Conduct diversity and inclusion training sessions for all employees to increase awareness, promote empathy, and reduce bias. Include specific training on transgender issues and challenges faced by trans individuals. Policies and training are only as good as your commitment to hold your employees accountable when they fall short of your expectations. Managers especially must buy in and be held accountable when their team members violate these rules.

6. Establish employee resource groups (ERGs). Encourage the formation of ERGs or similar support networks where trans employees can connect, share experiences, and provide each other with support. Consider providing resources and funding to help these groups organize events and initiatives.

7. Create a reporting system. Establish a confidential and safe reporting system for employees to report any instances of discrimination, harassment, or bias. Take reports seriously, investigate them promptly, and take appropriate action to address the issues.

8. Offer mentorship and career development. Provide opportunities for mentorship and career-development programs specifically tailored to trans employees. Ensure they have equal access to promotions, leadership roles, and professional-development opportunities.

9. Respect privacy and confidentiality. Treat an employee’s transgender status as private and confidential information. Only share this information with individuals who need to know for administrative or support purposes and ensure it is done with the employee’s consent. If and when to come out as transgender is always the employee’s choice and never the employer’s.

10. Regularly assess progress. Regularly solicit feedback from trans employees to understand their experiences and gauge the effectiveness of your support initiatives. Make adjustments as needed to improve inclusivity and address any concerns raised.

The law is always a floor and never a ceiling. Supporting trans employees goes beyond mere compliance with legal requirements. It involves creating an environment where trans individuals feel safe, valued, and empowered to be their authentic selves. Mary, welcome aboard.

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