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Q-Plus Employees in the Workplace

How can Illinois employers be more inclusive?

While the Human Rights Campaign’s 2021 Corporate Equality Index report found that 71 percent of Fortune 500 companies offer transgender-inclusive healthcare—up from zero percent in 2002—there is still work to be done when it comes to transgender employees and the workplace.

Employment and labor attorney Lori Ecker of Chicago says while the conversation goes well beyond bathrooms, that topic was recently critical to the tune of more than $200,000 in August 2021. 

“The Illinois Appellate Court ruled against Hobby Lobby, which for years had refused to allow a trans female employee to use the designated female bathroom,” Ecker says. “The way they claimed they were solving the problem was by having one unisex bathroom, but that wasn’t always available. Ultimately, she was awarded $220,000 in emotional distress damages, which I believe is the highest such award out of the Illinois Human Rights Commission. Hopefully the possibility of a six-figure award will encourage employers across the state to clean up their act.”

Other things employers should consider cleaning up—their communication protocol when it comes to their transgender employees. That could include messaging about how the employee should be addressed, for example. “It’s one thing to occasionally forget how to address a coworker by his or her name or pronoun,” Ecker says. “But when it continues, it’s harassment. Those communication procedures should be set forth in an employee handbook.”

Employers should also consider training current employees on what’s appropriate and not appropriate to ask or comment on. “Sometimes coworkers meet a transgender person for the first time, and they tend to use them as their ‘guinea pig’ and ask all sorts of ridiculous questions,” Ecker says. “This is one of the more common microaggressions you’ll find in the work environment. If people would stop for a second and really think about what they were asking, they might see, ‘This is grossly inappropriate.’ But that’s not happening.” 

Ecker had a client with one such case. The woman came to Ecker after requesting training from management after she noticed her colleagues not only didn’t know how to communicate with her, but also how to interact with transgender customers. “The employer said the trans woman should be the one to provide the training,” Ecker says. “The onus should not be on the employee. It starts at the top. Ownership and management need to make it clear that Q+ new employees are welcome, and promulgate policy in writing.”

When it comes to inclusive policy-making, employers should consider, for example, individuals who might be transitioning. “Certain individuals who are transitioning undergo permanent hair removal, but before that can happen, they need to grow out their beards,” Ecker says. “People generally don’t want to be at work during that time, so giving FMLA, PTO or sick leave for situations like that would certainly be a welcoming policy.”

Dress codes should be considered in a trans-inclusive way to meet employee needs, she notes.

Part of the problem, Ecker says, is that employers don’t understand their obligations post employee transition. “There really needs to be cooperation with the employee to identify not only how but the timeframe of when they’d like the news announced,” she says. “This should be a coordinated effort and not something the employer imposes on the employee.” It’s crucial the relationship extends to human resources as well, Ecker adds. 

“I think in a few years, in that amount of time, the idea of trans female or trans male in the workplace will be pretty basic,” she says. “The future workforce—today’s young people—are disavowing gender classification, period. Employers who have very strict dress code policies and things of that nature are going to find themselves treading water if not drowning in it if they don’t get their act together in regard to non-binary individuals.”

If you have questions on how to build a more inclusive workplace and provide a good employee experience, see our overview of employment law or consult with an Illinois labor and employment lawyer.

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