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Mar 20, 2017

LGBTQ in the workplace and beyond: ask the Commission for guidance


Category: Employment

On Tuesday, March 21, at the Carriage House in Lewiston, Amy Sneirson, executive director of the Maine Human Rights Commission, and Bridget McAlonan, of Sexual Assault Prevention and Response Services, will present a program discussing the law, regulations, and practical advice and guidance on handling LGBTQ issues in the workplace. They will also discuss how to integrate and accommodate LGBTQ employees in the workplace. Because the Maine Human Rights Act does require accommodation, having tools, suggestions, and guidance in this area should prove particularly helpful to anyone with employees. This program is one of the monthly presentations put on by the Central Maine Human Resources Association. The cost is only $25. Registration is right on line: http://cmhra.org/events/#!event/2017/3/21/lgbtq-in-the-workplace Doors open at 7:30 a.m. and the program includes breakfast. Come with questions!


Why does this topic affect you? As long as you have employees, it can affect your workplace and liability. If you have a business or operation that is open to the public, it is also an important area to learn about. While the rulings in federal courts have been varied and somewhat contradictory, Maine law has included sexual orientation under the Maine Human Rights Act since 2005.

What does sexual orientation mean under Maine law? Here is the definition from the Commission's regulations:

Sexual orientation means a person's actual or perceived heterosexuality, bisexuality, homosexuality, gender identity, or gender expression.

Gender expression means the manner in which an individual's gender identity is expressed, including, but not limited to, through dress, appearance, manner, speech, or lifestyle, whether or not that expression is different from that traditionally associated with that individual's assigned sex at birth.

Gender identity means an individual's gender-related identity, whether or not that identity is different from that traditionally associated with that individual's assigned sex at birth, including, but not limited to, a gender identity that is transgender or androgynous.

Transgender is used as an umbrella term for people whose gender identity and/or expression is different from cultural expectations based on the sex/gender they were assigned at birth. Being transgender does not imply any specific sexual orientation.

What is interesting is that many of our newest generation on into the millennials really don't care so much about who is what. Their friends may be bi, straight, or undecided and it is a "whatever" moment. And they may have friends who feel a mix of male and female, regardless of who they are attracted to. There are others who, for religious reasons or because of social upbringing or for other reasons, are very much concerned and/or fearful. For example, the fact that a person was born female but very much wants to transition to being male is difficult for many to comprehend. This program will help address how to handle some of those conversations. Personally, one conversation that helped me most was when a woman transitioning from male to female explained how taking the hormone therapy felt like she was getting a vitamin she had been missing all the previous time. With employees, you don't really want to get into detailed conversations about who they are attracted to, what their bodies feel like, and so on. At the same time, there is some amount of information that supervisors, owners, and HR folks need in order to determine what kind of accommodation may be needed.

Accommodation you say? Yes, there is a duty to accommodate just as there is with disability and religion. It is not a new concept really. This is how the regulations describe it:

It is unlawful employment discrimination for an employer, employment agency or labor organization to fail or refuse to make reasonable accommodations in rules, policies, practices or services that apply directly or indirectly to gender identity or gender expression, unless the covered entity can demonstrate that the accommodations would impose an undue hardship on the conduct of the business of the covered entity.

For example, if your company has a dress code and someone transitioning from female to male wants to wear clothing typically worn by men, an adjustment to the code may be called for. The more publicized and emotionally charged issues have been around bathrooms, as we have all read. Maine law is clear that a person must be allowed to use the room for the gender with which they identify.

Ok, so what can you ask? What if you think the person is faking? What if you are unsure what to do? The guidance issued by the Commission for schools is helpful. Here is the section on what you can do if faced with the issue:

Determination of a Student's Gender Identity:

In general, an educational institution should accept a student's assertion of their gender identity when there is consistent and uniform assertion of the gender identity, or any other evidence that the student's gender identity is sincerely held as part of their core identity. If the educational institution has a credible, objective reason to believe that a student's gender identity is being asserted for an improper purpose, it may request additional evidence supporting the student's stated gender identity.

(a) Satisfactory additional evidence may include, but shall not be limited to, the following:

i. A written statement from a physician, physician's assistant, nurse practitioner, or nurse who has been involved with the student's health care;

ii. A written statement from a psychologist, psychiatrist, or social worker who has met with the student;

iii. Passports or other formal documents showing the student's gender identity;

iv. Familial documents, such as family photographs or statements from the student's parent(s), guardian(s), or other adult relative(s);

v. A statement from an adult who is close to the student and can speak to the student's core gender identity.

(b) An educational institution may not require medical records as proof of a student's gender identity.

That guidance is available on line here: http://www.state.me.us/mhrc/guidance/CCmemo.education.so.pdf   We will follow up on this topic with discussion of tips of what to do and cases illustrating what not to do. But, for now, becoming familiar with what the law covers is important as is the heads up on the program set for March 21. Feel free to email Rebecca Webber at rwebber@STA-law.com if you have any questions!

 


 

This article is not legal advice but should be considered as general guidance in the area of employment and corporate law.  Bryan Dench, Amy DieterichJordan Payne Hay, and Rebecca Webber are employment and labor law attorneys; others at the firm handle business and other matters.  You can contact us at 207.784.3200.  Skelton Taintor & Abbott is a full service law firm providing legal services to individuals , companies, and municipalities throughout Maine.  It has been in operation since its founding in 1853.