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JoDee 0:11
Welcome to The JoyPowered® Workspace Podcast, where we talk about embracing humanity in the workplace. I’m JoDee Curtis, owner of Purple Ink, an HR consulting firm. With me is my co-host and friend Susan White, a national HR consultant. Today our topic is transgender employees. Are you inclusive? The term transgender is used to refer to individuals who do not identify with the sex they were assigned at birth, or with standard societal expectations of the male and female gender roles. Transgender individuals often experience discrimination with employment. A study conducted by the National LGBTQ Task Force and the National Center for Transgender Equality conducted a study with responses from over 6,000 transgender participants that resulted in eye opening findings.

Susan 1:14
50% of respondents reported they’re being harassed at work.

JoDee 1:19
28% said they lost their job because they were transgender, or gender nonconforming.

Susan 1:26
22% said they were denied access to the appropriate bathrooms.

JoDee 1:30
20% said they were removed from direct contact with the organization’s clients because they were transgender.

Susan 1:39
In April 2012, the EEOC stated that intentionally discriminating against an individual on the basis of the person’s gender identity, change of sex, or transgender status is a form of sex discrimination. And that is actionable under Title VII of the Civil Rights Act of 1964. What’s so interesting about that, though, is the Department of Justice has been just as vocal to say they do not recognize it as discrimination. And of course, we have those cases coming up that are being heard in the fall of 2019, about transgender and about sexual orientation. The Supreme Court, hopefully once and for all, is going to rule whether or not those are recognizable under sex from Title VII. We won’t probably have those answers until probably early summer of 2020. So who knows?

JoDee 2:27
Right, right. Not only is it unfair, it’s confusing, too, right? We don’t even understand what, what…

Susan 2:35
What you do as an employer.

JoDee 2:36
Right. Well, simple changes to an organization’s policies can make a more inclusive environment for these individuals.

Susan 2:44
Anti-discrimination policy ensures gender identity, gender expression, and similar terms are included on the list of protected classes.

JoDee 2:52
Even your dress code policy; don’t include traditional gender stereotypes such as women must wear dresses and men must wear ties.

Susan 3:02
Oh man, JoDee, they’d lose me as soon as they said I had to wear a dress. I love a dress once in a while, but, oh, not always comfortable. Number three, benefit policies and offerings. Don’t deny benefits on the basis of gender identity. You must treat transgender spouses, partners, and children in accordance with applicable laws.

JoDee 3:19
You can also include different diversity and inclusion initiatives.

Susan 3:25
And recruitment and selection process. Make sure that you review your processes for possible disparate impact or treatment, or really managers exercising unconscious bias. It may not be the law, but we think these are really good ideas.

JoDee 3:38
Yeah, I agree. Our guest today is Jeremy York. Jeremy is the lead consultant and president of InvigorateHR, an HR consulting firm. Through his leadership, InvigorateHR develops and delivers people solutions that are tailored to meet client needs and enhance their business. Jeremy has over 15 years experience in HR strategy and operations. With his guidance, organizations have improved employee relations, increased performance, and developed cultures based on mutual trust and respect. Welcome, Jeremy.

Susan 4:17
Jeremy, we’re so glad you’re here. Jeremy, why is it important for us to talk about transgender employees in the workplace?

Jeremy 4:43
Well, I think as our workplace begins to expand, and we have a lot of different types of people who are coming into the workplace that a lot of people think, you know, this isn’t a topic that I have to deal with. This is never going to happen to me. I’m never going to have to deal with having a transgender employee in the workplace, where the reality of it is is that you probably will sometimes have to deal with a transgender employee or someone who’s transitioning. So I think it’s important for us to really understand, you know, what do we need to do in order to, you know, address these issues, not only with the individual that will be, you know, transitioning or who might be transgender, but also with the workforce and the folks that we would be dealing with, right, and our cultures and the environment, etc. So I think, you know, it’s just something that we need to familiarize ourself with, be educated about, so that when we can be prepared when it does happen, and we do have to address it.

JoDee 5:32
It could even be that companies have transgender employees and don’t even know it, right?

Jeremy 5:39
Absolutely. You know, transgender employees or transgender individuals don’t come into work holding a big sign that says, hi, I’m transgender, just like you know, other LGBTQ employees don’t do the same thing. And a lot of times, you know, people think that oh, I can always spot a transgender person or something like that, when the reality is is no, you may not be able to. So there probably are employers that have transgender employees and they may not know it, as you said, JoDee, they may not know that they’re part of their employ. And just because they may not know, it doesn’t mean that people still shouldn’t educate themselves about it. Because you know, there are issues that come along with any employees that you have, and transgender individuals have a different set of issues just like other employees may have, you know, we all bring things to work from home and our lives, our personal lives, our upbringings. So we have to be familiar with those so we can address those as they come into the workplace.

JoDee 6:36
And Jeremy, how do we become more comfortable discussing transgender workplace issues?

Jeremy 6:42
Well, that’s a great question, JoDee. This is a topic that is really uncomfortable for a lot of people. A lot of people don’t know how to address it. A lot of people have a lot of emotion attached to this particular topic because of maybe their religious or background, you know, and their beliefs and in that capacity. Then we have other people who just don’t know what questions to ask, and they don’t want to be rude or offensive to other folks, and they don’t want to come off as being bigoted, for lack of a better term, and they just don’t know what they don’t know. So it all starts with the conversation and just educating yourself about transgender individuals and who they are, and, you know, basically, they’re human beings just like anyone else and deserve the same type of respect that everyone deserves. So we have to start by asking the questions about you know, who is a transgender person? What does that term really even mean? And educate, educate ourselves about that. You know, a lot of folks are uncomfortable with the topic. They don’t know what resources to go to, to educate themselves or who to go to. But I think just by having the conversations and starting the conversations within the workplace, that opens up that door to broaden people’s perspectives and minds and understand really, who is a transgender person and what does that really mean?

Susan 7:57
You know, I’ve had pretty limited experience with that. Although in one place that I have worked, we did have an issue where somebody was transgender, transitioning from male to female. And it seemed like all the energy, all the emotion was about the bathrooms.

Jeremy 8:11
Yes.

Susan 8:11
About which bathroom would he she use until what point. And the – in fact, we had female employees coming forth to HR, saying how uncomfortable they were about it, and so on so forth. I would imagine that’s pretty common of an issue. And I’d love to see your perspective on is – are you seeing that other places and when we talk about getting other people comfortable, how would you practically approach that?

Jeremy 8:33
Well, that’s that’s interesting, Susan, when you bring that up, because the bathroom topic is the first thing that comes to mind when people are talking about transgender individuals. I’m not quite sure why it’s so heated. You know, people in Europe have been using the same gender bathrooms for years. And it’s never been a problem in their particular culture. I think a lot of it has to do just with the American culture, our space, our beliefs, and kind of what we’re used to as being the norm. But it does seem to be quite bothersome to people. So it does come up often, and, and being able to address the bathroom conversation. And what’s interesting is, is that people don’t really know how to deal with that. Because yes, you have some employees who are uncomfortable, you know, when a transgender person uses the bathroom that they identify with, that might be different than their birth sex. And so, you know, really, when it all comes down to it, and a lot of people’s opinions are, you know, I’m just going to the bathroom to do my business, does it really matter? I’m not trying to look over the stall to see what you’re doing or, or anything like that. And, and so it does make people very uncomfortable. So it’s, again, it’s a conversation, but you know, from a legal perspective, you know, this is something where, you know, we’re really talking a little bit more about there’s been a lot of issues from the bathroom issue. You remember maybe a year or two ago, there was the bathroom issue in North Carolina, and that was a lot of legislation about that. But, you know, funny enough that even though our main government hasn’t really talked about it too much, OSHA has and OSHA is actually delivering some guidance about transgender employees and about how you’re supposed to address the bathroom issues with all of that. And basically, what OSHA does say and teach us underneath all that component is that transgender employees have the right to use the restroom for which they identify with. So if I’m transitioning, and I know, you know, I’m male, and I’m transitioning to female, and that’s what I’m kind of living my life as, then I should be able to use the female bathroom according to OSHA, and that OSHA also says that employers are not, you know, cannot require a transgender employee or person to use a different bathroom other than the one that they choose to use. And they can’t impose them using a bathroom that is farther away or out of reach from a bathroom that other people may use. So it’s interesting that we get that perspective from OSHA, but yet we don’t really have any other guidance or directive yet from, you know, the other government kind of components. So what a lot of people will do as soon as you pointed out, people say, hey, I’m not comfortable with this transgender person coming in to the restroom. And the answer to that is, is that we’re not – we can’t make the transgender person use another restroom, but we can make you, who’s complaining about it, use another restroom.

Susan 11:13
You know where the next one is!

Jeremy 11:13
Exactly, exactly. So and that’s kind of what it is. I mean, I did have this come up with working with a particular client, where there were some employees who did not want to use that restroom and were complaining and basically they wanted that transgender individual to go use the bathroom that no one used that was on the other end of the building, and so they thought that was a better solution. Well, the company came back and said, well know if, if, if you want to use that bathroom on the other end of the building, and you’re more comfortable with it, go right ahead. However, this bathroom is available for everyone to be able to use. And that pretty much is the guidance that OSHA gives us.

Susan 11:50
Gosh, I’m glad to know that. I think we stumbled our way through that and said, listen, we’re an inclusive workplace. The fact is, is that we’re not judging who goes to which bathroom and they didn’t like it, but they accepted it. But now, now I got OSHA behind me! Thank you.

Jeremy 12:02
Yeah, absolutely. And it – like I said, it’s kind of a tricky one and we, we kind of laugh about, it always comes up at every time, every session that I talk about it, people always want want to know, it seems to be such an interesting topic. People always want to discuss it, because they’re uncomfortable with it, you know, and so they just want to have a conversation about it.

JoDee 12:19
It is interesting that we’re talking about that, too. For some reason, every night last week, I had an event and I was in several different places, that – several new places that I hadn’t been to before, as well as I went out to lunch several days last week, and it hit me on Friday that I thought, finally we’re making some progress in that, whether it was a restaurant or an event center that had non-labeled restrooms, and I was just thinking, why has it taken us so long to get to this point, especially, in many of the places where I was at, it was a restroom for one person, right? It was a closed one. Like, why did we always have a male and a female restroom? It just really makes no sense that we even ever started that, with the single ones for sure.

Jeremy 13:16
Yeah, and you’ll see that at a lot of places, especially we see it in academia with colleges and universities, and we’re starting to see it a little bit more in healthcare as well, where they’ve went to all gender restrooms instead of a male and female. And so, you know, typically these are equipped with single stalls that people can use and, and it’s not, not really a problem. Again, as I mentioned earlier, that’s – I was just in Europe recently, and that’s how a lot of the bathrooms there were. You walk in, there’s males and females using these all gender restrooms that have one stall and that’s it, and no one seems to be bothered by that. But it doesn’t –

JoDee 13:53
And no one’s standing up looking over the stall?

Unknown Speaker 13:54
Right! We all know what’s going on in there. I mean, you know, so, you know, let’s just move on, right?

JoDee 14:01
Right, right.

Susan 14:01
So Jeremy, how do we prepare our workplaces to be more inclusive?

Jeremy 14:05
Well, you know, I think it really begins with, as I said earlier, conversation, but also commitment from the organization about, you know, what does diversity, inclusion, and belonging really mean to them? You know, we talked all of these last several years or even decades about diversity and inclusion focused on what? Race and gender, right? That’s where our conversations have led us. But now, we talk more about diversity, inclusion, and belonging, about creating workplaces and cultures that are accepting and inclusive of all people, regardless of their background, their age, or sex or gender, you know, ethnicity, what any of that is, we all know that we’re all different. But yet those differences make us unique. And those – that uniqueness brings different types of thoughts, you know, ways to figure things out, problem solving, etc. So it’s a whole great aspect of what diversity, inclusion, and belonging and not what really makes us different, but more about what really makes us all similar and how we can utilize both the differences and the similarities to gain the best out of our workforce. So we start there with that type of idea and concept and talking about creating diversity, inclusion, and belonging initiatives in the organization. You – choosing language that is inclusive, looking at our policies and understanding how our policies and you know, really impact our people. And what does it mean, looking at the way that we interact in the community? Does our hiring practices really illustrate us hiring people that are actually representative of our community? Or do we all look the same? You know, what is, what does that mean? So it really starts with that commitment, but what a lot of organizations don’t understand is that they’re like, okay, I’ve got this whole diversity, inclusion, and belonging thing, kind of I understand it. Yeah, it’s the right thing to do. Well, really, yes. But it’s more than that, right? Because, you know, studies have shown that companies that are different and also inclusive outperform other organizations by about 25%, which is huge. And we also think about getting into markets that other companies may not, right. So if you’re got people who work for you that are part of, you know, maybe that are disabled, or veterans, or part of the LGBTQ, or, you know, or more, you know, older population, you’ve got your workforce with their ideas and perspectives. That means they can help you as a business be able to reach those people and widen your market, right, depending on what you’re doing. But if you don’t have those people, which means that your organization doesn’t value them, which means that your policies, your practices, and your beliefs don’t value them, then that’s not going to help you at all, right? So it really starts there about what does our organization believe about people who are different? You know, do we want to include them? Or do we want to have this elite social club where we only like this particular group, right? And you think about that, you think about how the workforce has changed, which has been predominantly men. And you know, when females started becoming into the workplace, well, now we’ve got people with different religions, people of different races, backgrounds, languages, all of these things that can help us be better as an organization. And that’s really where it starts, flows down through our, our policies, our practices, how we, you know, represent ourselves in the community, and what kind of community involvement we do and just kind of social activism at the same time. And I think that’s really how organizations can begin to have that, but they have to start at the top with the people who feel like it’s important to them.

JoDee 17:39
Well said, Jeremy. So Jeremy, what is a common myth that people have when discussing transgender issues?

Jeremy 17:49
Um, I think there’s a couple, and one I touched on already is that I’ll never have to deal with a transgender person in the workplace.

JoDee 17:57
Yeah.

Jeremy 17:57
That’s a common myth. I know both of us, my clients and I know clients of Purple Ink all have transgender employees who are working there. And it’s something that I think we’re all going to have to deal with, especially now as it’s become a subject that is more talked about, and that people are learning more of and people are coming out and stepping out and talking about being transgender and being more comfortable with, you know, talking about their journeys, as you know, they either transition or deal with being transgender. So I think we are definitely going to address that and see that in the workplace. It’s just a matter of time. And just about maybe a couple of years ago, I did a session on transgender employees in the workplace at the HR Indiana Conference, which is an amazing conference. And I had someone contact me just a week later and said, hey, you know, I really loved your topic. I’d really like for you to come and talk to all of our HR managers about this and our managers, because I think it’s just a matter of time. And then I responded back to her and then she got back to me and said, hey, we just had our first transgender person come to us talking about transitioning. She goes, this couldn’t be a better timing. So again, you know, they were being proactive, but you just never know. Right? So I think that’s a common myth. So people think, oh, I don’t have to deal with this. I don’t need to know about it, what have you, etc. I think the other common myth about transgender people is that everyone assumes that it’s like the process is like flipping a switch that one day, I just decided that I want to transition and now I am either a male that wants to be female or female that wants to be male. And really, the transition process is very lengthy and can take a long time. I’m talking years. I’ve known a few HR managers who have been dealing with transition in the workplace for two or three years, because it is a long process with all of that. And it’s not like one day I decided that I’m a man and the next day I’m going to show up in women’s clothes because I’m saying that I’m transitioning to be a female. It’s not that easy. It’s much more complicated, much more complex. I think people need to understand that and show some empathy, and really some compassion about what people are going through when they’re dealing with transitioning, especially at work, which is hard, right? We spend more of our time with our work folks than we do with a lot of our family. And so, you know, we have to understand where these folks are coming from and what we need to do as an employer to be able to support that. We would support employees in any other time, you know, transition or challenges or anything like that. So why would we treat someone who’s transgender any different?

Susan 20:30
Sure. So are you seeing companies in their benefit offerings offering to pay for transitioning? Is that coming more common?

Jeremy 20:38
It is. So a lot of companies that are very progressive and that have you know, a strong diversity, inclusion, and belonging program and that value workplace diversity do include gender reassignment surgery as part of their benefits. For example, we had it was Dow Agro, which is not Dow anymore, but they, they included this in their benefit packages and would support that and would have Employee Resource Groups, etc. So we are seeing companies that really stand out about, you know, diversity, inclusion, belonging, about what it means to them being able to support employees in that capacity. So I wouldn’t say that we’re seeing a lot of it, but it is out there. And a lot of companies are including that as part of the package.

JoDee 21:20
Nice. Nice. Jeremy, is there anything else that we haven’t asked about that you would like to share with us?

Jeremy 21:29
Yeah, I think it’s really interesting that we need to really pay a lot of attention to this topic. Currently, we are about to see our first case go between, or go before the US Supreme Court as it relates to transgender employees and gender identity. This is something that has not been in front of the Supreme Court before and now that they’ve just opened, within their session here, within the end of 2019. They’re going to be hearing arguments in some cases, as you know, how does that relate to Title VII and the protections underneath sex, and I think that going to be interesting for us to see how that plays out. Given that, you know, this is something that we’ve not really dealt with before, because currently, half of the circuit courts have been split on this. Half of them have ruled that you know, gender identity and sexual orientation is covered underneath Title VII underneath the sex provision, where others say, hey, it’s not related and that wasn’t the intention of what those protections were supposed to grant. So the Supreme Court will be hearing some cases before that. So we’ll have to stay tuned and see what happens. But likely, I would imagine it’s going to be in 2020 when we see any type of, you know, decisions on that, but this is going to really have an impact on, you know, employers, employees, and people of diverse groups all the way together. So it’ll be interesting to see how this plays out.

Susan 22:44
We were talking about that a little bit earlier in our program. And what I’m wondering is if given the kind of surge and interest by employers who really want to be diverse and inclusive, are you seeing a lot of companies, you know, petitioning the Supreme Court or trying to get their opinion noted, like friends of the court and things like that to try to get a approval for recognizing transgender and sexual orientation under Title VII.

Jeremy 23:10
Yeah, so a lot of companies have been doing that. Also, the Human Rights Campaign has been really lobbying a lot and illustrating and partnering with a lot of employers throughout the US that show their support for this. So that is something that has been going on, but we’re probably going to see a lot more of that, because we’re just now starting to put this case before the US Supreme Court. So I would, I would assume that we’re going to see a lot more and hear a lot more about companies getting behind what they believe is the right thing to do. And you know, being inclusive.

Susan 23:41
Yeah, that’s great. I hope so. So Jeremy, how could any of our listeners reach you if they’re interested perhaps in educating their staff members about this issue, or they’d just like your advice or consulting?

Jeremy 23:52
Absolutely. Well, you can find me on Twitter @yorkjeremy, that’s Y-O-R-K-J-E-R-E-M-Y, can also find me at www.invigoratehr.com, and we can connect and if there’s any questions or anything that we could ever help you with in regards to transgender employees, etc., we are certainly happy to do so.

JoDee 24:15
Yeah, thank you so much for sharing with us today, Jeremy. I’ve heard you speak before on this topic and yet I still feel like I’ve learned a lot more today. So.

Jeremy 24:25
Great.

JoDee 24:25
Thanks for sharing.

Jeremy 24:26
Well, thank you for having me. I appreciate it.

Susan 24:28
Thank you.

JoDee 24:28
Good.

Susan 24:30
So JoDee, we have a listener question today. “What are some books that you would recommend HR professionals read?”

JoDee 25:16
So this is an interesting question for me, because I’m a huge reader. And I read a lot of business books, but I really had to think, are there books I’m reading that are just specific to HR. And I’m not sure that’s what our listener was getting at anyway, but one of the things I think is important as HR professionals as that you understand business itself, and not just HR. So some of my favorite books, Patrick Lencioni is an author of five or six different books, I recommend every single one of those. One of my favorites is “Getting Naked.”

Susan 25:56
Oh boy.

JoDee 25:57
Which is about vulnerability.

Susan 25:59
Is it R rated?

JoDee 26:01
Nope, it’s all, it’s all good. Of course, there’s a whole series of books around Clifton StrengthsFinder. So if you just Google StrengthsFinder, you’ll come up with lots of books on there. This was originally kind of a precursor to StrengthsFinder, was called “First Break All the Rules,” which was written by Marcus Buckingham, who actually worked at Gallup at the time he wrote the book. That’s one of my favorites. But I did just read last week, a book that our listener might be most intrigued with, it’s called “HR on Purpose,” by Steve Browne. B-R-O-W-N-E. I, Steve is a friend of mine, to be fair, but I think it’s an excellent book, really, about the life of an HR professional, so.

Susan 26:53
Hm, I’m gonna check it out.

JoDee 26:53
Really good.

Susan 26:55
Well, JoDee, you know I don’t like to read nonfiction. So I usually always have a fiction novel with me, but I do believe that we do need to stay current in what’s happening in the world of business, and so I do read the Wall Street Journal Monday through Saturday cover to cover. Back when I was working really, at the heat of my career, I was so busy at work so early in the morning, I barely read my local paper, let alone the Wall Street Journal. But now that I’m in my encore career, yeah, I do have a chance to read the Wall Street Journal and my local paper, and almost anything like that, that I can pick up, because I think it’s important we stay abreast of what’s happening in the world of work.

JoDee 27:30
Yeah. Speaking of that, I have a subscription to Harvard Business Review, which another way, I think, to keep up on business trends. I have to admit, sometimes that magazine is over my head. So a lot of very high level researched articles in there, but.

Susan 27:48
Oh, that’s great. If you find a book out there that you love, please share it with us and we’ll be happy to share it with our listeners.

JoDee 27:55
In our in the news section, Google has announced that they will be shutting down the applicant tracking system and recruiting software Hire by Google in September of 2020. The company will not be charging users after their next bill. It will allow contracts to be terminated without penalty and will assist in migrating applicant and candidate data to another platform for free. A reason why I thought this was interesting, I, I had to laugh a little bit in wondering if anyone has even ever heard of the system Hire by Google.

Susan 28:31
Okay, I talk to people all the time about what applicant tracking system they’re on. Not one person’s ever told me they were on Hire by Google.

JoDee 28:37
Me too. And I – what’s fascinating to me is that when that first came out, I thought, Google is going to take over the world in applicant tracking, but…

Susan 28:48
Yeah, they might still, but just not with applicant tracking.

JoDee 28:49
Right. And for some reason that – I don’t know if it was a technical issue or promotional, but that seemed like it never caught on. I remember when it came out, and I don’t think I’ve heard another word about it until they’re, they’ve announced they’re shutting it down, so.

Susan 29:07
Wow, interesting.

JoDee 29:11
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