Bruce Jenner made headlines last weekend when he sat down with Diane Sawyer for and revealed he has identified as a woman for years. But it’s important for employers to remember that he’s not the only one.

Photo Credit: torbakhopper cc
Photo Credit: torbakhopper cc

Although only an estimated .3 percent of adults in the US and two to five percent of the global population identify as transgender, many speculate that number could be even higher with better polling and increased acceptance. Currently only 18 states and the District of Columbia have laws protecting transgender workers, along with 143 cities and counties. But as the general public increasingly recognizes the transgender community, employers can expect more lawsuits around mistreatment of transgender workers—even when there’s no explicit law on the books. It’s a long process, but here are four ways employers can get started being better allies to their transgender employees.

Education:

90 percent of transgender people report experiencing harassment, mistreatment, or discrimination on the job, so first things first, make sure you understand the issue a little. Transgender is a complicated umbrella term for a lot of different identities, but the long and short of it is that transgender people (sometimes abbreviated as “trans”) have a gender identity that is not in line with the sex they were assigned at birth.

Some may alter their hormones or body, some may present their gender identity more obviously than others. But not everyone does, and their choices and decisions around that are private matters. You can’t just tell if a person is transgender from looking at them. And just like there’s no right or wrong way to transition, each trans person will come out to those around them in their own time.

To be prepared for when they do, there are certain steps an employer could already have in place to help the process.

Names:

One thing that may change is a person’s name and pronoun. And as GLAAD notes in their guidelines for trans allies, it may be a process:

A person who is questioning or exploring their gender identity may take some time to find out what identity and/or gender expression is best for them. They might, for example, choose a new name or pronoun, and then decide at a later time to change the name or pronoun again. Do your best to be respectful and use the name and/or pronoun requested.

It’s important that employer remain aware of this process, since in a work environment, refusing to respect an employee’s chosen pronouns could be a sign against you, as it was in the EEOC’s case against the Army on behalf of a transgender woman who was repeatedly called “sir.” As David J.B. Froiland writes for Labor & Employment Law Perspectives:

The EEOC found that the Army publicly segregated and isolated her from other employees of her gender and communicated that she was not equal to those other employees because she is transgender. When managers insisted on calling her “sir,” it compounded the discrimination and sent the message that the employee was unworthy of basic respect and dignity because she is a transgender individual.

Bathroom:

One of the biggest daily challenges transgender people face is what many nontransgender folks (called “cisgender”) consider straightforward: what bathroom can they use? Ideally they’d be able to use the bathroom that aligns with their gender identity, but sometimes that can lead to verbal abuse, or worse.

For employers looking to create a friendly environment for transgender people in their workplace, Russell Cawyer writes on Texas Employment Law Update that the solution could be as simple as streamlining bathroom options:

Consider establishing single occupancy toilet facilities, unisex restrooms or allow transgender employees to use the restroom facilities of the gender with which they identify.  Single occupancy restrooms can be used by both transgender employees or those employees uncomfortable sharing common restrooms with transgender employees.

Obviously that’s not an ideal situation for some, who may have office buildings they can’t alter and may have two separate bathrooms. But failure to provide any sort of plan for transgender employees to harmoniously use the bathroom is a huge red flag—take, for example, the same recent EEOC ruling against the Department of the Army, as The Modern Workplace notes:

In 2010, [Tamara] Lusardi talked with her supervisors about her process of transitioning her gender presentation/expression from male to female. At the time, Lusardi agreed to use a unisex restroom rather than the women’s restroom until she had undergone a planned surgery. On several occasions when the unisex restroom was unavailable, however, Lusardi used the women’s restroom. On each such occasion, she was confronted by her supervisor, told that her female restroom use made others uncomfortable, and that she must use the unisex restroom until she could show proof of having undergone a “final surgery” to become female.

The EEOC found that the Army’s restroom restriction was a discriminatory adverse employment action based on Lusardi’s sex, noting that equal access to restrooms is a significant, basic condition of employment and a crucial aspect of a transgender employee’s transition. The EEOC found that it was improper for the Army to condition access to the female restroom on any medical procedure, stating:

“Nothing in Title VII makes any medical procedure a prerequisite for equal opportunity (for transgender individuals, or anyone else). An agency may not condition access to facilities – or to other terms, conditions, or privilege of employment – on the completion of certain medical steps that the agency itself has unilaterally determined will somehow prove the bona fides of the individual’s gender identity.”

Dress code:

The EEOC has remained fairly vigilant on the rights of transgender workers, and so far their main weapon has been to evoke Title VII, claiming that discrimination against employees who are transitioning is a form of sex discrimination. Laura J. Maechtlen writes on two separate cases for the Workplace Class Action blog:

In both cases, the EEOC alleges various theories of “sex” discrimination on behalf of the claimants. The EEOC alleges that the decision to terminate each of these employees was motivated by “sex-based” considerations because the employee is transgender, because of the employee’s transition from male to female, and/or because the employees did not confirm to the employers sex- or gender-based preferences, expectations or stereotypes.

…The EEOC also uses as a basis for liability the decision in Price Waterhouse v. Hopkins, 490 U.S. 228, 239 (1989), in which the U.S. Supreme Court held that Title VII bars discrimination based on gender stereotypes, in other words, failing to act and appear according to expectations defined by gender — a form of sex discrimination that has since been described as “sex stereotyping,” and one alternative way of proving sex discrimination.  The EEOC has made clear that, while gender identity and/or expression are not independent classifications for protection under federal law, the agency will attempt to establish a case of sex discrimination through a variety of different formulations.

If an employer is taken to court for their treatment of a transgender employee, they better have a good reason for policing their clothing choices. Otherwise, it could be a pretty easy case against them.

Obviously there are a number of issues that factor into the lives of transgender workers, and there may be other humps down the line. But though only 44 percent of the population in the U.S. is protected by actual laws preventing discrimination, the number of legal outlets transgender people have for protection are growing. Employers would be wise to grow along with them.