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Navigating the trans-friendly workplace: Q&A with employment lawyer P.K. Runkles-Pearson

An attorney at Miller, Nash, Graham & Dunn talks about how to create a trans-friendly work environment.


The following interview has been edited for clarity.

OB: You've been practicing law since 2002. How did you decide to become a transgender employment expert?  

Runkles-Pearson: A combination of things. After being an employment lawyer, I became an education lawyer. At the same time I've been involved with the ACLU. Through that I’ve met a number of people who are going through transitions. So I've worked on the law and human and policy side. That has formed my philosophy — that not getting sued and being kind to people goes together in a lot of ways.

 Portland also has more out trans people than other places.[Oregon ranks 7th in the nation for number of transgender identifying residents.]

OB: Are you handling more transgender employment cases than you have in the past? 

Runkles-Pearson: There are more than there used to be. I’ve litigated cases involving trans people. But more what I do now is give advice to employers to help them make their workplace really transgender friendly. 

OB: Are businesses receptive to advice?

Runkles-Pearson: A lot are. I presented on this issue at our annual employment seminar this year, and I was surprised by how many people were saying: 'We’re facing this issue and wondering what we should do.' It’s one thing to say we’re going to be trans friendly, and many people want to do that. But figuring out the nitty gritty of how is a more difficult question.

OB: So what should businesses do to make their workplaces more trans-friendly?

Runkles-Pearson: The first thing some employers struggle with is determining if the employee is transitioning. It's like determining if someone is pregnant. You don't want to ask. Some employees self-disclose, which makes it easier.

The best way I recommend is find the person in the office who is that person’s most trusted friend. Phrase it in terms of, ‘How can we help you? Is there anyway you would like us to act that’s different than we have been acting?’ It could be: 'I'm fine. please leave me alone,' to 'I'm changing my pronouns,' to 'I'm changing my name' to 'I need some time off.'

It’s not so much a question of asking as it is asking in a way that is sensitive and supportive.

OB: Will sensitivity and support protect employers from lawsuits?

Runkles-Pearson: My philosophy is a person who feels they’re being treated fairly and sensitively is a person who's less likely to sue you. You may be doing more than the law actually requires of you. [The law doesn’t require employers to ask how they can support employees.] But it does help you to open the conversation in a way that’s going to create an atmosphere where somebody’s not going to be suing you.

OB: And if someone is transitioning in your office?

Runkles-Pearson: Follow the lead of the person who's going through the most uncomfortable experience. People are going to slip up; that’s going to happen. Establish the fact that it is OK to unintentionally slip up, correct yourself and move on. It makes everyone more comfortable.

Obviously, calling someone by the pronoun they don't prefer deliberately as a way to harass somebody is not OK. But most transitioning people are comfortable with the fact some people will mess up. 

OB: The Trump Administration recently rolled back guidelines for public schools that allowed transgender students to use the bathroom of their choice. What are the workplace implications?

Runkles-Pearson: Especially in a place like Oregon, people are going to continue exactly like they have. Oregon is different and requires gender identity [as a protected class]. And there are Oregon education guidelines as well. 

Nationwide, it remains to be seen. In some places like North Carolina there may be some changes. I do think though — and this is less a legal prediction and more of a human prediction — the tide is turning. People want to remain open to trans people and to trans issues and continue an open conversation on these issues, and thinking more about our common humanity instead of the things that make us different. That eventually going to lead us to the right place.

Runkles-Pearson's Top Four Things to Consider in a Trans-friendly Workplace:

At minimum, employers should be including gender identity in non-discrimination policies. In Oregon, gender identity is a protected class. If you protect it, it should be in your policies. 

Dress codes: If your dress code says men have to do this and women have to do this — first of all you should consider whether this is really needed at all from a non-trans standpoint. But if it is, you should be comfortable letting someone who is transitioning decide they're going follow the other code.

Background check: Most people think about trans issues as happening when someone is transitioning in the workplace. But there are a lot of people who have already transitioned, and you wouldn't know it until you look at their background check. You need to be comfortable about the fact there might be another name there and know what to do when that happens.

The big R (restrooms):  The best way is to evaluate your facilities before someone is transitioning. One principle I like to tell folks is everybody likes privacy in the restroom, including me.

Let's say you go into your restroom and you have stalls that you can clearly see who is in the restroom through that gap. You might want to consider getting some stripping to cover that area. You don't have to be trans person to appreciate bathroom privacy. If you have the wherewithal, you might consider stalls that go all the way down to the floor.

If you have the resources to do so, I think everyone appreciates having at least one single stall lockable bathroom. That’s not valuable just for trans people/ You cant tell a transgender person, or any person really, based on what they look like where they can go to the bathroom. When you have that initial conversation with someone transitioning, ask them where they feel comfortable.

Workplace atmosphere: The thing the employer also has to deal with is that coworkers might not be comfortable with the transition. It's important early on to establish an atmosphere of openness and a respect for everyone. That’s something you can and should do before anyone is transitioning in your office.

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