Founder and Employment Law Attorney Employment Practices Group
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How to Handle Discrimination at Work

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While workplace discrimination is nominally against the law, that doesn't necessarily reflect the actual experience of many LGBTQIA+ employees. Transgender individuals, in particular, are highly likely to be impacted by this issue at some point during their careers. We're kicking off Pride month and continuining our commitment to diversity with an article from employement lawyer Julie Moore on what you can do if your employer is discriminating against you.

Jun 1st 2021
Founder and Employment Law Attorney Employment Practices Group
Columnist
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On June 15, 2020, the United States Supreme court issued its opinion in Bostock v. Clayton County, holding that Title VII of the Civil Rights Act of 1964 prohibits employers from refusing to hire, firing, or otherwise discriminating against individuals based on their sexual orientation or gender identity. This decision means that employers are legally obligated to prevent and correct harassment and discrimination based on sexual orientation or gender identity – and yet, this legal protection is a hollow promise unless workers feel free to report their concerns. Recognizing that discrimination against transgender workers may look different than discrimination against other groups and acknowledging the broader social forces that make reporting it more difficult are positive steps in the direction of truly realizing the promise of Bostock.

According to one 2020 study, 53 percent of transgender respondents indicated that their ability to be hired was moderately or significantly impacted by discrimination, and 47 percent said that discrimination had a moderate or significant impact on their ability to retain employment. To change this trajectory, we must learn what to look for. Transgender workers are often subjected to different types of harassment than other workers. These might include issues surrounding bathroom accessibility; deliberate use of incorrect pronouns; dead-naming; and having to tolerate inappropriate questions. Even seemingly routine workplace benchmarks like performance evaluations may, in fact, be tainted by discriminatory bias.  

Take, for example, the situation of Tory, a 6’3” project manager (“PM”) with a deep baritone voice, a quick wit, and an uncanny skill for keeping their team on task. Company performance metrics showed that Tory’s team is far outpacing other teams, so much so that Tory’s manager initiated a 360-performance review in anticipation of promoting them to Lead PM. But much to the manager’s and Tory’s surprise, several team members characterized Tory as “intimidating,” “aggressive,” “too loud,” “overly forceful,” “leering” and someone who “speaks in a harsh tone.” Several of the same respondents referred to Tory using incorrect pronouns. And, one person who knew Tory many years ago, prior to joining the company, referred to them using their dead-name, Tony.

While that 360 feedback could have been a roadblock to Tory’s success, fortunately, their manager recognized the dissonance between the performance metrics on the one hand and the manner in which some team members characterized Tory on the other.

Gender stereotyping is nuanced and often difficult to pinpoint. But it is a real phenomenon. Of course, not all managers are like Tory’s. What could Tory have done if their manager had not recognized that the subjective 360 feedback seemed off?

The first step would be to pull out the company’s anti-harassment policy. It should contain a clearly defined reporting procedure which ideally identifies multiple avenues to submit complaints. Next, Tory would be wise to gather up their evidence. In this scenario, that might include both the objective performance metrics and the subjective 360 feedback comments. Finally, Tory may want to consider whether there are allies on their team or within the company who might provide support through the process.

The path to realizing the promise of the Bostock decision also requires recognizing that what happens in the workplace does not occur in isolation. Transgender individuals face a far higher incidence of unemployment, poverty, health care insecurity and sexual violence (including intimate partner violence), among other things. More than half (51 percent) of LGBTQ respondents in the above-referenced survey said they experienced harassment or discrimination in a public place, such as a store, public transportation or a restroom. Moreover, the intersection of gender identity, sexual orientation, age, disability, race, ethnicity, socioeconomic status and immigration status further marginalizes some transgender individuals, making them even more vulnerable to being misunderstood and mistreated in the workplace.

Such social stigma and marginalization can have far-reaching implications. For instance, consider the plight of Ariel, who suffered a violent attack while returning home from work late one night on the subway. Ariel was subsequently diagnosed with PTSD as a result of that attack. Her PTSD is triggered by taking the subway, so, now, she travels to work by bus despite the hour increase in her commute time and the fact that the bus always seems to be late. As a consequence, Ariel’s manager put her on a final warning for tardiness. Is that discriminatory?  No. But, to preserve her job without sacrificing her mental health, Ariel may need to consider what options exist for communicating with her manager about her situation.

Potentially, Ariel might feel safe communicating directly with her manager, especially if there are openly gay or transgender people in the organization’s leadership. Studies show that leaders have a direct impact on the content and implementation of internal policies and practices. However, as of 2020, less than 0.3 percent of Fortune 500 board directors were openly LGBTQ. Additionally, Ariel simply may not feel safe sharing her experience directly. Fear often causes transgender individuals to camouflage their authentic selves from co-workers, including hiding personal relationships or changing the way they dress or speak. Therefore, another option for Ariel could be to work with her medical provider to request a reasonable accommodation in the form of an adjustment to her work hours.

Pressing for equality in the workplace is a job we all share. Transgender individuals face unique challenges in reporting workplace mistreatment, and, at times, seeking fair treatment requires extra tenacity and ingenuity. While managers are increasingly recognizing that gaining a competitive edge requires cultivating a diverse workforce, the change cannot come quickly enough. In the meantime, transgender individuals and their allies are stuck with the hard work of holding employers accountable for preventing and correcting workplace harassment. The Human Rights Campaign offers a useful tool for evaluating employers’ records for LGBTQ-inclusive policies, practices and benefits.

Julie Moore co-authored this piece with her colleague, Marcie Vaughan, an employment law attorney at Employment Practices Group.

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