Articles/Publications

Transgender Inclusion in the Massachusetts Workplace

By J. Jordan Scott

Massachusetts has long been a leader in civil rights, and several years ago Massachusetts joined the minority of states that provide explicit protection against discrimination on the basis of gender identity. Massachusetts’ anti-discrimination law was amended to add “gender identity” to the list of protected categories which extend to the workplace, housing, and government agencies. While that law provides much needed protections, employers are increasingly concerned about workplace issues specifically affecting transgendered people.

One question facing employers is harassment. As gender identity is part of the broad anti-discrimination statute, harassment and similar conduct is handled the same as it would be for race, gender, or other protected categories. Employers should include gender identity as part of their regular anti-harassment workplace training. The anti-discrimination statute also impacts the hiring of employees, and employers should refrain from asking any gender identity-related questions unless the gender of the employee is relevant to a bona fide occupational qualification. The law does permit such exceptions, but employers must ensure the qualification is legitimately needed and cannot be viewed as a pretext.

Another question facing employers is how to handle restrooms. The best practice would be to have one gender neutral bathroom, which appears to be a growing trend. The White House recently opened a gender neutral bathroom, as have several universities. When having a gender neutral bathroom is not possible for financial or other reasons, employers must defer to the employee’s choice of restroom, which is consistent with just-announced federal best practices issued by the Department of Labor. Forcing an employee to use a certain restroom would likely be considered discriminatory.

Some of the country’s largest companies have already implemented policies that acknowledge and respect gender identity issues. By one count, over half of Fortune 500 companies have included gender identity in their nondiscrimination policies. While protecting transgendered people is law in Massachusetts, it is also good business. Every business should strive to employ the most talented people it can, and gender identity (just like race, religion, and other personal categories) is simply irrelevant to the quality of the employee. Employers should work with their human resources staff and employment counsel to craft and implement policies that maximize the available workforce.  Should you have questions or concerns regarding Massachusetts’ anti-discrimination law or your company’s practices, consult with your employment attorney.

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