A Win for Transgenders

American Eagle Outfitters agreed to settle allegations of discrimination in New York that could open the door to friendlier policies for transgender workers. The case could have impact on HR in the future, but a bigger impact could be coming courtesy of a bill pending in Congress that would outlaw bias against transgendered workers.

Thursday, June 3, 2010
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In a situation that could have wide-ranging impact on appearance in the workplace -- especially when it comes to transgender workers -- American Eagle Outfitters agreed to revise its policy against cross-dressing at work after complaints from activists.

It all started when the community group Make the Road New York complained to Attorney General Andrew Cuomo's office, stating that the retailer had a pattern of discrimination against transgender job hunters and that its policy against cross-dressing was discriminatory to the transgender community, according to the New York Daily News.

While American Eagle did not admit wrongdoing, it agreed to change its policies, revise the employee handbook and train its staff to be sensitive to transgender workers and customers -- such as the proper use of "he" or "she."

"To avoid further expense and the distraction of a prolonged argument, [we have] agreed to a compromise settlement in this case, with the understanding that [American Eagle] is not admitting to the findings," a company spokeswoman told the Daily News. "We wholeheartedly believe that transgender individuals should be treated equally."

Jewelle Johnson, a partner in the law firm Fisher & Phillips, says that HR executives crafting a dress code should focus on rules for appropriate, professional attire -- and steer clear of gender stereotypes, she says.

"Dress codes that promote gender stereotypes by requiring men to wear suits and ties or women to wear skirts or dresses should be revised to simply require employees to wear professional attire appropriate to the office or environment in which that employee works," says Johnson.

The same should be true for grooming standards, says Sally Still, a partner with the law firm Buckingham Doolittle & Burroughs in Boca Raton, Fla.

"Instead of mandating that men must wear their hair short and no longer than the collar, employers can state that hair must be clean, neat and restrained," says Still.

The American Eagle settlement could set a legal precedent -- but only in states or communities that have laws protecting the rights of the transgender community.

"Most states do not have any such prohibitions and there is currently no federal law that explicitly protects this population," says Johnson.

But there is such a law in the works.

The Employee Non-Discrimination Act, currently in Congress, has a provision about transgendered workers -- stating that employers can administer dress codes and grooming standards for someone who has undergone gender transition before their employment, says Johnson. Such employees would simply have to comply with the company's dress code for their chosen gender.

"The potential danger area for employers are situations in which employees are in the process of undergoing gender re-assignment and their appearance does not necessarily conform to their chosen gender," says Johnson, noting that the onus is on the employee to notify the employer about their gender transition. If they do, they are entitled to an adjustment of the dress code.

"In so doing, the employer should engage the employee in an interactive discussion as to what attire will satisfy the needs of the employer to maintain a certain image to customers and the public while allowing the employee in question to dress in the manner of his or her chosen gender," says Johnson.

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Still says that, if the law passes, HR departments would be best suited to figure out the best course of action.

"Employers ... must think outside the conventional box, which is the value of HR professionals trained in this capacity," she says. "They can draft and enact policies, as well as recognize this issue's potential to expose employers to legal action."

Critics have dubbed the legislation the "Cross-Dressing Protection Act," but both Johnson and Still say that its passage wouldn't protect cross-dressing at all -- just the transgender community.

"If we are going to have a serious debate on this issue, we cannot lump groups together who are not the same," says Still.

"Cross-dressing, per se, is not protected in any of these acts to my knowledge. It is not commonly understood as being a gender identity issue -- it is usually considered an occasional act participated in by individuals who otherwise do not identify themselves as the gender they are dressing as, and to use it in connection with gender identity and transexualism undermines the dialogue."

The transgender community has long complained about being discriminated against, and being, as a result, under-employed.

Cuomo kick-started the deal with American Eagle by citing a section of New York's Human Rights Law barring employers from gender-identity discrimination, the first such crackdown using that law, according to the Daily News.

American Eagle did not immediately return a request for comment on this story.

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