By: Kenney & Sams, P.C.

As the human resources director at a medium sized construction company of 150 employees, you deal on a daily basis with all types of employee issues. One day, Jill, who works in the field as a carpenter, comes into your office and discloses that she identifies as a man and has begun the transitioning process.  Jill lets you know that he will change his name to Bill in several months. After listening to him and being as empathetic as possible, you are concerned that Bill’s co-workers in the field may not be as empathetic and open minded as you are.  While you may be able to control most of your employees, you are also concerned of potential comments and attitudes of other companies’ employees at the work sites.  As a result, you recommend Bill return to duty in your company headquarters’ workshop out of concern for the level of expected comments. Is this recommendation consistent with our state’s discrimination laws?

Unless the employee specifically asks to be transferred, this recommendation likely violates Massachusetts discrimination laws. Massachusetts added gender identity to the list of protected classes under our state’s discrimination laws in 2012.  Those laws prohibit treating people differently regarding matters relating to compensation or on the terms and conditions of employment because of the person’s protected class such as race, gender, sexual orientation, and gender identity, among others.  This transfer involves a significant change in duties and may function as a demotion, so it likely affects the terms and conditions of the person’s employment. When the company bases an adverse employment action such as this on an employee’s protected class status, the law is violated. Your company could not transfer all female or minority employees to the office out of any concern for stray comments or unequal treatment, and it likewise cannot do so based on any employee’s gender identity.

Discrimination against a transgender person can take a number of forms in addition to transferring them out of a concern over anticipated comments. According to the Massachusetts Commission Against Discrimination, it can include a refusal to call the employee by their by chosen name or a refusal to refer to them with the correct pronoun.  In addition, denying them the ability to use a bathroom or a locker room of their chosen gender can also be an act of discrimination. Denying the employee the opportunity to attend weekly meetings; failing to accommodate reassignment surgery; or teasing for mannerisms or for appearance can also constitute harassment or discrimination.  Of course, requiring them to appear or dress as their biological gender can be discrimination.

So what do you do when faced with this situation? Understanding that revealing this to you must not have been easy is a good first step.  Obtain information on when the person intends to make known their transition or when they will start appearing as the gender they identify with so you can educate the workforce on the employee’s transition.  Training the company’s co-workers on discrimination then becomes very important.  The co-workers need to understand that their co-worker’s gender identity is a protected class just the same as one’s race or ethnic background and that discrimination will not be tolerated.

In a written guidance on gender identity discrimination, the MCAD refers to one company facing this situation which had its president meet with the staff to convey that the employer will not tolerate discrimination directed to the person; disciplined an employee who sought not to work with the employee; and promptly changed the employee’s name on company records to reflect the person’s name change as evidence supporting the company’s position that it did not subject an employee to a hostile work environment.

All of these and other steps should be considered and implemented by any company facing this situation. The failure to recognize the significance of the employee’s transition to another gender can result in a violation of the discrimination laws by the company and any of its employees who participate in any prohibited conduct.

Kenney & Sams regularly provides training on discrimination laws, including on gender identity status.