Proactive workplace policies needed to address gender preferences

In a sign of the times, many employers are enacting workplace policies to address gender issues and show respect to people who may want to be called by names and pronouns that reflect their gender identities rather than their biological characteristics at birth.

The policies are needed to avoid discrimination and harassment problems that could crop up as non-binary and transgender people increasingly identify themselves in the workplace, lawyers and other experts said.

Co-workers may be asked to respect these individuals by using different names and pronouns. Companies, meanwhile, can communicate employee preferences in staff directories, email footers and online staff profiles, as well as in marketing promotions and literature circulated in the workplace and elsewhere.

In addition to the traditional “he” and “she,” some people are using the generic “they” or ‘xe,” neither of which refers to a specific gender.

“Every transgender or non-binary individual deserves to be addressed as they see fit in the workplace,” said Adrian Shanker, executive director of Bradbury-Sullivan LGBT Community Center in Allentown. “By not addressing that individual as they want to be addressed, that is a form of harassment, and an employee that does not want to use the appropriate gender pronouns to speak to that individual should be disciplined.”

Still, it may take time for employees to adjust and consistently use a person’s preferred pronoun, noted Stephanie A. Koenig, an attorney at Fitzpatrick Lentz & Bubba PC in Upper Saucon Township.

“An employee can politely and respectfully correct a co-worker who uses the wrong pronoun,” Koenig said, noting that it helps to give people the benefit of the doubt. “It is likely that the co-worker wants to respect your preferred pronoun.”

She said that in the past year the Pennsylvania Human Relations Committee announced guidance that state law prohibits discrimination on the basis of transgender identity, gender transition, gender identity and gender expression.

“In light of this, employers may want to consider reviewing and revising non-discrimination and equal employment policies and practices to ensure that sexual orientation, transgender identity, gender transition, gender identity, and gender expression are protected,” Koenig said.

She said that she is seeing an uptick in cases that involve gender identity issues in the workplace, but it impacts employers differently based on their class and size. She recommends that employers discuss the implications of gender identity with their legal counsel.

Federal law also is in flux, suggested Kelly Fackenthall, an employment law attorney at Winegar, Wilhelm, Glynn & Roemersma PC, which has offices in Phillipsburg, New Jersey and Bethlehem.

Title VII of the Civil Rights Act has been interpreted to prohibit gender identity-based harassment and discrimination, she said.

“When a transgender employee comes out to their employer, it is important for the employer to show the employee that the employee is welcomed and accepted,” she added. “The key is respect and making it clear to your employees that you as an employer want to make the employee feel supported.”

An employer should be prepared to ask appropriate questions, she said, to determine the pronouns, names and titles each employee prefers.

“Where a legal name differs from the employee’s chosen name, be cognizant that office memos, letterhead, and any other documentation referring to employee use the employee’s chosen name,” she said. “The employer should also consider updating its handbook and employee forms to be inclusive. When addressing staff, avoid using gendered language. For example, instead of ‘ladies and gentlemen,’ try ‘all’ or ‘everyone.’”

Many companies already have been updating their policies to handle gender identity issues, said Mark B. Stanziola, an attorney at Gardner Law Office in Bethlehem. And, he said: “While not universal, many municipalities in the Lehigh Valley have also enacted anti-discrimination policies to protect from all forms of workplace discrimination.”

Companies are slowly incorporating chosen gender identity markers, he added. “The best practice again is to confirm with each individual how they wish to be identified and for the company to make sure that this is universally updated and applied.”