Is It Time To Add Gender Identity to Your EEO Policy?

By Rebecca R. Hastings, May 2006

[From the SHRM Diversity Focus Area]

Harvard University’s recent decision to add gender identity and expression protection to its nondiscrimination policy could prompt other organizations to follow suit. To make a seamless transition, experts say, employers should focus on planning, communication and ongoing education.

According to the Gender Public Advocacy Coalition’s (GenderPAC) Workplace Fairness guide, "gender identity" refers to “an inner sense of being either male or female” whereas "gender expression" means “manifesting a feeling of being masculine or feminine through clothing, behavior or grooming.” An individual whose gender identity or expression does not conform to that associated with his or her sex is transgender whereas an individual who has changed or who wants to change his or her sex is transsexual. GenderPAC is an organization that works to end discrimination and violence caused by gender stereotypes.

“People are only just learning to understand what gender identity is all about,” says Ben Hladilek, HR business partner at JP Morgan Chase in New York, one of the early organizations to add gender identity protection to its policy. “Some will have false ideas of what it means to have a transgender individual working with them.” As a result, he says, HR professionals who are considering a policy change should be prepared to educate people throughout the policy approval process as to what the terms mean.

As of April 2006 118 major corporations have added gender identity protection to their policies, as have 56 colleges and universities. Comparative information about organizations that have made the change can be found in the Human Rights Campaign’s Worknet database. Hewlett-Packard’s nondiscrimination Policy and IBM’s equal opportunity policy, as examples, clearly reflect the companies’ commitment to diversity and equal treatment.

Making a Business Case

“A workplace should be a safe place for everyone to learn, grow and succeed,” says Riki Wilchins, executive director of GenderPAC. “Any individual who is gender nonconforming has a heightened risk of harassment or discrimination.”

“It’s not just a matter of changing because it’s the right thing to do,” Wilchins says. “It also sends a strong message to employees that ‘locker room’ type of behavior is not acceptable.”

However, the decision to add gender identity protection also tells the world that workplace diversity is welcome, Wilchins says. “And there’s evidence that, in a knowledge economy, knowledge workers are drawn to companies that embrace diversity because it’s good for innovation.”

Making the appropriate decision depends on the organization and what is important to it, says Dr. Jillian Todd Weiss, principal consultant of Gender Diversity Consulting LLC in Mahwah, N.J., and an assistant professor of law at Ramapo College of New Jersey. According to her research, companies in the manufacturing, finance/insurance and information sectors are more likely to have gender identity policies. But some industries are more conservative, highly regulated or interested in avoiding controversy.

The gender identity language in JP Morgan Chase’s policy has survived two mergers and the addition of many new staff because of ongoing efforts to reinforce the importance of the policy, Hladilek says. The strong relationship between HR and the employee resource group helped them talk through next steps, approvals and other changes that would need to be made. Of course, having employees who wanted to transition on the job helped management understand that gender identity was a real issue, Hladilek adds.

The Expected ROI

The motivation to add gender identity to a policy is the same as it is for adding sexual orientation--it’s about recruitment and retention, says Pj Iraca, a developmental editor for publisher Wolters Kluwer Law and Business in New York. “People are more interested in working for a company that’s going to protect them--and transsexuals are the last frontier of discrimination.”

Hladilek agrees: “What we have found in our recruiting efforts is that individuals will often look for signals about what a culture is like; having gender identity protection signals we are a diversity leader and are serious about providing an inclusive environment.” However, he makes it clear that adding gender identity to a policy is "not a silver bullet for solving diversity issues related to demographics.”

Wilchins says the common thread among the companies with gender identity policies is that they are all diversity leaders. Diversity leadership pays--it attracts good people and it creates value for customers and shareholders.

Those companies that want to make their HR policies as employee-friendly as possible will be most likely to add gender identity to their policies without prompting, Weiss says.

Iraca agrees that companies are becoming aware of the business advantages to an inclusive approach: “A lot of these companies see that the marketplace is bigger and that gay, lesbian, bisexual and transgender individuals have a lot of expendable capital.”

However, another reason companies do so is that they have experience with employees who are transitioning, Weiss says. “In the absence of a policy their managers don’t know what to do, and that can lead to grievances and lawsuits.” Having a plan to respond is recommended. “There are a number of companies that have been sued by transgender employees,” she adds. “They could have avoided it by addressing employee needs differently.”

Wilchins says there really is no alternative to adapting to the changing legal environment surrounding gender identity: “It’s not like you can avoid this forever--why wait for an unpleasant lawsuit?”

Iraca agrees that a proactive approach is best: “Most companies don’t like to be forced into it by bad press or lawsuits.”

Executing the Decision

“Policy change at a large organization can be very difficult,” Weiss says. “You need to go through a lot of layers of approval, and there may be a lot of questions along the way.” But it is important for those who will be responsible for enforcing the policy to understand it.

And employee reactions to a change in policy will depend on the way the new rules are introduced, says Weiss. If a company explains what gender diversity is, why the organization is making a change and where employees should go if they have questions, the reaction should be mild, even for companies that are in regions where there is a more traditional culture.

Weiss recommends that employers have a separate policy that addresses a variety of issues related to gender identity, such as:

Appearance expectations and bathroom issues are the predominant concerns companies will need to address, according to Iraca. Transitioning employees will also have a lot of questions about whether to be candid about their change and will be concerned about backlash from co-workers and the boss.

Hladilek says the communication of his company’s policy change was accompanied by education for all employees on the topic of gender identity, as well as training for HR. “Recognize that just because the policy changes, it doesn’t mean the job is over.” JP Morgan Chase also launched an intranet site for HR staff to share situations, resources and best practices with one another. “Instead of asking an HR person to reinvent the wheel, we want to help them with past practices and give them a policy that supports their decisions.”

“Work closely with your employee resource group if you have one,” says Hladilek, because they often have the best idea of what the environment is like.

Iraca says that community groups can be helpful for small companies who don’t have employee resource groups. And he says organizations like GenderPAC and the Human Rights Campaign are always willing to help.

“Partnering with GenderPAC has been terrific,” Hladilek agrees. “They can provide insights about the legal landscape and how to think through issues regarding bathrooms and related issues.”

Preparing for Employee Reactions

Companies cannot just add gender identity to a policy and move on, Weiss says. “They have an obligation to deal with foreseeable problems for employees who are transitioning at work.”

If the organization simply rolls a policy out with no explanation or training, that leaves room for questions, particularly when there is a transgender employee in the organization, Weiss says. “That’s when a company can expect a more difficult reaction.”

Part of the policy execution process, according to Weiss, is a statement from the organization that employees must follow the policy with regard to workplace behavior and relationships even if their personal beliefs about gender identity differ.

The principle of respect for others helps JP Morgan Chase respond to employees who say that their beliefs conflict with the company policy. “When people do have issues or concerns about personal belief, our response is that they must respect co-workers while they are at work but that doesn’t mean they need to agree with them.”

“We’ve been consistent in our messaging to employees so they know what they need to do to continue to work here,” Hladilek adds. “We’re not asking them to change their personal beliefs; we’re asking them to respect their colleagues.”

“The fact is that these people are out there and they are working, and they have every right to work,” Iraca says. “It’s not fair for employees to say ‘your existence is against my moral fiber.’ ”

“There is a downside no matter which way you go,” Weiss says. “If you add a policy, there will be those who disagree with it. And if you don’t have a policy, there will be those who won’t see you as diversity-friendly.”

“A lot of companies have not done it because it’s something new,” Wilchins says. But the goalposts are moving and, increasingly, intolerant behavior on gender is illegal and actionable.”

“There has to be a willingness to be brave about it,” Iraca says, but he adds that all companies should really be interested in is the bottom line: “Does it really matter if you have a woman who used to be a man?”

Rebecca R. Hastings, SPHR, is online writer/editor for SHRM.

Related Reading: SHRM

Gender Identity in the Workplace

http://www.shrm.org/diversity/library_published/nonIC/CMS_014662.asp

Equality’s Latest Frontier

http://www.shrm.org/hrmagazine/articles/0303/0303cadrain.asp