Kate B. Rhodes and Denise Merna Dadika, Members of the Firm in the Employment, Labor & Workforce Management practice, in the firm’s New York and Newark offices, respectively, were quoted in Law360, in “Transgender Workers Under Trump: 3 Tips for Employers,” by Braden Campbell. (Read the full version – subscription required.)

Following is an excerpt:

The U.S. Department of Justice recently contradicted the U.S. Equal Employment Opportunity Commission by arguing that federal law doesn’t bar employers from discriminating based on gender identity, underscoring the lack of clarity around legal protections for transgender workers. While the feds can’t get on the same page, employment law experts agree: Bias against transgender workers isn’t just wrong, it’s bad for business.

Even if courts eventually adopt the DOJ’s stance that Title VII’s prohibition on sex bias in the workplace doesn’t help trans workers, companies that discriminate against them risk running afoul of state and local laws, losing talent to progressive competitors and taking a hit to their reputations. …

Epstein Becker Green’s Kate Rhodes often tells clients that ask for help dealing with this patchwork of laws to tailor their policies to the most progressive jurisdiction where they operate.

Not only does this avoid the headaches of administering multiple policies, it can help businesses attract talented workers who increasingly want to work in inclusive environments, she said.

“It’s a recruiting tool to show that, ‘We might have a big office in Atlanta or New Orleans, but we are abiding by the employment laws of more progressive states like New York or California,’“ Rhodes said.

Rhodes says she has gotten more calls from clients lately asking how they should respond to transgender job applicants or workers who say they are transitioning. One issue comes up more than any other: bathroom access. The issue has been a lightning rod in the broader debate over transgender inclusion, with opponents citing safety concerns.

Rhodes said she recommends that employers let transgender workers use the bathrooms of their choice, and tell objectors to use a gender-neutral restroom or avoid the restroom when a transgender colleague is using it. This is “an interesting pivot from the way a lot of employers used to operate,” which was to tell transgender workers to use single-stall restrooms, she said.

“Now with more progressive laws that have been enacted, it’s the opposite: Now the objector is the one that’s directed in that direction,” she said. …

In employment law, it pays to be proactive rather than reactive, and transgender inclusion is no different.

“Employers would be very well-served to have a practice and policy ... in place to make the process more seamless,” Rhodes said. “And also so no one accidentally puts their foot in their mouth.”

The DOJ laid out its view on transgender rights in a case that started after a Michigan funeral home fired a worker undergoing a male-to-female transition for not following its rule that men wear suits and ties. The Sixth Circuit said her firing was illegal sex discrimination under Title VII of the Civil Rights Act, but did not say whether R.G. & G.R. Harris Funeral Homes’ policy was itself illegal.

Still, employers risk legal action when they impose gender-specific dress codes, said Denise Dadika, an Epstein Becker attorney.

“Employers should create dress codes that aren’t specific based on male-female,” Dadika said. “It shouldn’t say, ‘Men can wear slacks and ties and women can wear skirts or pants,’ because you’re going to have transgender individuals who are not going to fit into that policy.”

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