In 2003, California became only the third state to enact legislation specifically protecting transgendered employees from workplace discrimination. It did so, moreover, in a clumsy and ill-defined fashion that will likely lead to considerable mischief in the courts in California and a spread of this movement to other states.
California's new law will pose a significant challenge for employers who will now have to assimilate transgendered employees into the workforce. A few large employers have already adopted rules and guidelines for the treatment of transgendered employees.
Managing transsexual employees highlights the need to train affected managers and co-workers who share a workplace with a transsexual employee. Many employees are likely to harbor an unfavorable image of transsexuals. Given this negative image, even if training is provided, transsexual employees are nonetheless likely to become the target of insensitive and harassing inquiries or slurs by co-workers.
One of the most difficult questions employers face in accommodating a transgendered employee is which restroom such a person should use. Concerns raised by employees forced to share a restroom with an employee of the opposite sex who is in the process of transitioning to the other sex cannot be so easily dismissed. A male employee in the early stages of the transition process toward becoming a female is likely to cause consternation, if not panic, upon entering a women's restroom.
If a state deems worthy a law prohibiting discrimination against transsexuals, fine. But limit it to transsexuals; i.e., those persons who have made or are making the physical and psychological transition from one sex to another. These laws should not be written so broadly as to cover cross dressers and other assorted folk who might fall under the label of "transgendered," and they should not hold employers responsible for preventing the kind of locker room talk that is so common in many workplaces today.
The full text of this article is published in the Employee Relations Law Journal, Spring, 2004 issue.