The South Carolina Employment Law Letter normally analyzes newly issued cases in its lead article, but we take a moment to address a “hot button” issue that is impacting many states, including South Carolina. There has been a bill introduced in the South Carolina Senate, tailored along the lines of the North Carolina bill recently signed into law, that would require an individual to use the bathroom based on the sex that appears on his or her birth certificate. As of the day this article is written, the legislation is unlikely to get to a vote this year. From an employment perspective, we think that employers should be asking, what are the Human Resource (HR) implications in the workplace? Some thoughts below.

What should a business do?

A starting point for most every employer is that the entity is going to be covered under the federal discrimination laws. In fact, the Equal Employment Opportunity Commission (“EEOC”) has included Transgender as a protected class, and has transgender rights as one of its many areas of enforcement. With that enforcement effort in mind, employers may think about asking themselves the following questions – are my systems and policies designed to (1) attract and retain the people most qualified for particular jobs; (2) allow all employees to become a productive, innovative, and a creative part of our team; (3) treat all people fairly and judge them on their abilities, not on some protected class basis to include their gender identity or expression; (4) demonstrate compliance with federal, state, local, and global employment laws; and (5) fulfill our company’s diversity and inclusion initiatives?

Once an employer answers those questions, it may then begin to get a little more granular with what it is actually doing with its overall nondiscrimination efforts in the workplace. It may well want to ask – what should we be considering if a transgender issue is presented to us? It seems that a good first step is to treat a transgender issue – which will involve a sex change – with sensitivity. Inherent in dealing with the transgender issue with sensitivity is being respectful of the individual’s privacy; understand that there is no set timetable, and that each situation will be unique. The employer may want to consider designating a point person for the individual who can listen and help the transitioning employee. Since there will be no timetable, both the employer and individual will want to understand when, how, and the timing of the disclosure to co-workers. A dialogue about this can be helpful to include what name, pronouns, and other words may assist in this transition that works for all involved. The dialogue and action steps should include, among other things, (1) changing the person’s name and photo on company documents; (2) reviewing and changing coverage as necessary under the employer’s health and other benefit plans; (3) as noted, the communication and timing of that communication to the company; (4) discussion of restroom and dressing room use; (5) dress code and/or appearance rules; (6) supervisory and employee training to include conduct expectations and how to handle conflict; and (7) client and customer notification and communications as appropriate to the situation.

You should be aware that there are likely to be co-workers who are uncomfortable with this issue, but that you must do what you can to manage the situation. Always be vigilant against subtle forms of discrimination, including the words being used and exclusion by co-workers of the individuals participation in meetings, etc. It may also be a good time for a periodic review of policies. Without trying to limit the policies to consider, some that come to mind are your EEO policy and procedure guidelines, your dress code policy, your harassment guidelines, and any bullying policy that you have adopted.

As is often the case, it is the Human Resources professional in the employer/employee context that takes the lead in dealing with changes in society. This was true back in the 1960’s when the federal nondiscrimination laws were enacted to insure that individuals were treated in a non-discriminatory way, and this holds true today. The challenge is again before each of us that deals with people in leadership roles and each must be prepared to meet the current challenge. It is better to be at the forefront and be thoughtful about how and what you are doing in your workplace than have the government dictate something to you.

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