It would be virtually impossible for most employers to ignore the acceleration of civil rights legislation affecting the workplace. What with Wal-Mart battling a decision to classify as a class action a sex discrimination suit that could include as many as 1.6 million of its current and former female employees and sexual harassment training now mandatory for businesses with at least 50 employees, there are numerous examples of situations and incidents that now weigh on an employer’s human resources decisions. As the laws have advanced, many argue that they have caught up to modern day perceptions and realities, providing protections that should have been commonplace. But the evolution of the legislation has also led to some new, albeit rare occurrences that pose particularly thorny situations for employers. Last year, an amendment to California’s Fair Employment and Housing Act added a new protected class to the books transgender individuals, or what the law calls those with gender identity disorder. As a result, an employer whose top sales man becomes its top sales woman, either surgically or simply by proclaiming to be, is prohibited from discriminating against the employee. The cases are rare, but attorneys like Richard S. Rosenberg, founding partner at Ballard Rosenberg Golper & Savitt LLP in Universal City, has had to deal with several such situations in his labor law specialty. His client, a computer equipment sales firm, had a salesman who, one day, advised his supervisor he planned to start coming to work in a dress. “They had some very practical issues,” Rosenberg said. “Which bathroom does he use? What do they say to their customers, especially people who would be surprised by this? The thing about California law that is really troubling is you cannot base your employment decision on your customers’ preference for gender, age, religion, etc.” Balancing act The situation gets even stickier when an employer tries to make the accommodation without putting off clients. “If there’s a concern that Joe became Josephine and he’s calling on the same customers and there’s a level of embarrassment on both sides, one alternative may be changing territories, or giving the person brand new accounts where there’s no track record,” said Cynthia Elkins, a Warner Center attorney who represents employers in employment litigation. “But since they’re new accounts, you don’t have a built-in commission level and it could impact on their earnings, which could result in a claim.” The Transgender Law Center, which has been providing training to attorneys on these issues, notes that in California, individuals may change their names and gender identities on personnel records without any court documents. The group also advises that employees should have the right to use the rest room that corresponds to their gender identity “regardless of the employee’s sex assigned at birth,” although the situation has never been tested in court. Elkins, who trains employers in her practice, has been addressing the issue. “In my training, I don’t spend more than 15 minutes addressing it because right now there’s so many other things we need to cover,” she said. “But I tell them if you ever do have an employee going through this process, we need to talk in more detail.” But attorneys point out that the significance of these types of issues is greater than the incidents likely to arise. They say they are part and parcel of a growing body of law that seeks to accommodate workers in a way that can seriously hamper the business of the company. “I do a program called managing a diverse workforce,” said Rosenberg, not looking at it from a racial or ethnic viewpoint, but there are so many laws that protect people that have so many interests that pull their attention away from their jobs. We take on these humans that have lots of things going on that can take them away from work, and the employer is paying the price.”
