“It is possible that individuals may take the tweets as encouragement to act in a discriminatory manner against transgender individuals,” Nathaniel Glasser, an attorney with Epstein Becker & Green in Washington, D.C., tells the Society For Human Resource Management (SHRM). “Employers must be aware of their legal obligations to address any potential backlash.”
Trump had tweeted on July 26 that “after consultation with my generals and military experts, please be advised that the United States government will not accept or allow transgender individuals to serve in any capacity in the U.S. military.” Trump further tweeted “our military must be focused on decisive and overwhelming victory and cannot be burdened with the tremendous medical costs and disruption that transgender[s] in the military would entail.”
Trump’s tweets do not amount to an official policy change as the U.S. Department of Defense noted the next day it was “awaiting formal guidance from the White House,” Huffington Post reports.
The Pentagon last year lifted its ban on transgender service members after a full review of its military readiness. A reversal would “undoubtedly adversely impact transgender service members who are currently serving openly under the Obama-era policy,” Elizabeth Marvin, an attorney with Lewis Baach, in Washington, D.C., tells SHRM.
Trump’s call for the ban will fuel intense passions at the workplace from supporters and detractors, Marvin says. “Managers need to be educated about transgender issues, and companies should adopt a zero-tolerance policy regarding harassment of transgender employees,” Marvin says. “Work should be a place where transgender employees feel safe and are not judged.”
HR and firms’ legal teams also need to prepare for potential ramifications. The Equal Employment Opportunity Commission (EEOC) notes that transgender individuals are protected from discrimination under Title VII of the Civil Rights Act of 1964. The EEOC has pointed out that it views “employers’ attempts to restrict transgender employees from using the restroom that corresponds with their gender identity or expression as evidence of discrimination,” Mark Phillis, an attorney at Pittsburgh-based, Littler, tells SHRM.
Michelle Phillips and Conrad Shawn Kee, attorneys at Jackson Lewis, suggest that workplace managers may want to remind employees of their anti-harassment policies They also may want to put in place a discrimination policy specific to transgender employees.
“Discrimination against transgender individuals will continue to be prohibited in 19 states for civilian employees of the federal government and for employees of federal contractors,” Phillips and Kee write in an email response to SHRM.