Managing transphobia in the workplace is difficult for everyone. But, as we reported in the companion story, “Special Report: How to Get Away With Harassing, Firing or Never Even Hiring Trans Workers of Color,” non-White transgender and gender nonconforming employees face a particularly potent combination of discrimination. Here, eight FAQs about how to fight for your rights.
Where can I learn the basics about what is and isn’t legal?
Because trans people just got Title VII protection four years ago, it’s common for transgender workers and their employers to lack even basic knowledge of what they’re not allowed to do anymore. Whether you’re job searching or already working, take time out to read the EEOC’s comprehensive overview of your civil rights. National advocacy organizations including the ACLU, Transgender Law Center and National Center for Transgender Equality, also have helpful resources that are easy to navigate.
At press time, only 22 states and Washington, D.C., have non-discrimination statutes that cover transgender workers. This interactive map from Transgender Law Center will help you learn about your state. You should also look into the gender-based anti-bias laws and policies of your city or county.
Do I have to answer medical and gender-identity questions during a job interview?
Though some prospective employers may act like they have the right to ask you anything, you are not obligated—legally or ethically—to respond. “The basic rule is to only share information you feel comfortable providing,” says Chinyere Ezie, staff attorney at Southern Poverty Law Center LGBT Rights Project. No employer, she adds, has the right to request information about hormone replacement, gender reassignment surgery or any other medical matter as a condition of hiring. “If you feel comfortable disclosing that you are transgender—or it is necessary to explain a gender marker on an identity card or other records—all that is required is to say in a calm, straightforward manner is, ‘I’m a transgender woman or man.’” If you’re in the L.A. area, the Los Angeles LGBT Center offers mock job interviews so you can practice.
I have a criminal record. What now?
A reported 16 percent of transgender people have been in jail or prison at some point, due in large part to disproportionate police harassment. This number is even higher for trans women of color.
The federal government along with some states, localities and companies have adopted versions of “Ban the Box” measures that eliminate or delay questions about applicants’ criminal records. But even with these policies, you may need to discuss a felony charge that is relevant to the kind of job you’re applying for or explain why you have gaps in your employment history.
There is no magic bullet here, but Meghan Maury, Economic Justice Project Director at National LGBTQ Task Force, recommends being up front. “It’s best to ‘pull the sting’ early,” she says. ”Be honest about your past near the beginning of the interview, then pivot to why that experience, as part of your whole lived experience, makes you valuable to the company.”
Letters of reference may also help at the interview stage. “If you can, cultivate references that are willing to provide letters of reference that you can present to employers early in the process,” says Maury. “That way, your interviewer can speak with someone who will vouch for your commitment to the work, your goals and your future plans.”
How do I handle the restroom issue at work?
According to Chase Strangio, an attorney with the ACLU LGBT & AIDS Project, barring a transgender employee from using the restroom that matches their gender identity is a Title VII violation. Furthermore, employers are not allowed to ask for or require trans workers to provide medical or legal documents as a condition of using the correct bathroom.
For clarity up front, Strangio suggests having your employer read OSHA’s Guide to Restroom Access for Transgender Workers [PDF] from the Department of Labor.
If you experience restroom harassment or restrictions, even during the hiring process, document it. Write down names, dates, times and details about each instance. Incidents include transphobic “jokes,” e-mails from your supervisor challenging you on which restroom you use, and company wide policies that are official but illegal.
Should I go straight to Human Resources about harassment?
People in Human Resources can provide vital support to employees facing discrimination. But know that some HR departments are more focused on protecting the company and leadership from legal liability and poor public perception than they are on helping its workers. ”There is not a litmus test that you can use to determine your HR department’s accountability to supporting transgender rights,” says Malcolm Shanks, a lead trainer in the Network Department of Race Forward, Cololines’ parent organization. “Sometimes a company is very trans-inclusive on its face, but has procedures and practices are transphobic.” If you’ve observed discriminatory practices and policies at work, consider seeking advice from an attorney or advocacy organization before you contact HR.
Should I get a lawyer?
The right attorney is your best support in a discrimination fight. But the truth is that finding a lawyer who will take your case can be difficult, and many require money up front. “There is a learning curve that attorneys face when advocating effectively for transgender persons,” says Ezie. “Often transgender individuals approach private attorneys who do not have full resources or information on developments in the law.” If you need a lawyer, be prepared to do some leg work and don’t assume that one attorney’s perception of your case represents what is possible.
Nationally, the Transgender Law Center has a national Cooperating Attorney Network you can search. Lambda Legal has a help desk that you can contact online or at 1-866-542-8336. The National Employment Law Association is primarily for people working in the legal field, but it has a Find-A-Lawyer network of attorneys who have paid to be listed.
You should also contact local and state LGBTQ centers and groups for referrals. We haven’t found a comprehensive list, but CenterLink’s international map of centers might help you find one in your area. GLAD refers lawyers to people living in New England. The Sylvia Rivera Law Project helps residents of New York City’s five boroughs and New York State prisoners, in Spanish if needed. The Los Angeles LGBT Center offers private consultations for $10, but they will not turn you away if you don’t have the money. The DC LGBT Center has a list of local attorneys and groups, many faith-based, where you may find leads.
How do I start the legal process?
Typically, if you want to sue a non-federal workplace you must start by filing a complaint with the EEOC. This federal agency functions as a filter of sorts, deciding if your case has merit and what action you should take. (Read the EEOC’s “What You Can Expect After You File a Charge” for basic information.) If you’re filing a complaint against a federal employer, your first stop should be the EEO Counselor assigned to the job.
There are time limits no matter what sector you work in. Typically, non-federal workers must file a complaint within 180 days—about six months—from the last incident. Federal workplaces generally give you 45 days since the last violation.
Ayana Byrd is a Brooklyn-based writer whose work has appeared in The New York Times, Fast Company and L’Uomo Vogue. She is the co-author of “Hair Story: Untangling the Roots of Black Hair in America” and co-editor of “Naked: Black Women Bare All About Their Skin, Hair, Hips, Lips & Other Parts.” She is currently completing her first novel.