Wednesday, May 9, 2018
As published on Fora.ie, May 2018.
Over the last few years, complex issues in relation to gender identity have exploded in the public consciousness.
Increasingly, society is having to grapple with issues of gender, sex and sexuality. The subject of transgender rights, for example, has come to the forefront and it is apparent that historic concepts of ‘male’ and ‘female’ are rapidly becoming outdated.
The manner in which society adapts to this changing landscape is yet to be seen, but it is clear that these issues will continue to evolve.
For employers, though, the question of gender identity throws up practical issues that must be addressed in the workplace. By way of a very simple example, if a female employee is in the process of transitioning to male, or vice versa, and wishes to dress and be addressed in a particular way, should an employer facilitate this?
Irish employment law does not deal with the question of gender identity specifically – there is no piece of legislation, for example, addressing the rights of individuals in transition.
In the employment context, it is likely that an employee who is the subject of adverse treatment in the workplace as a consequence of a change in gender identity would only have recourse to two traditional routes, neither of which may be exactly fit for purpose.
First of all, an employee has an unquestioned right to a safe place of work – and that definition is broad enough to encompass a workplace that is safe from harassment.
Therefore, at least in theory, an employee who is the subject of derogatory treatment as a consequence of expressing his or her preferred gender can complain to their employer and seek remedial action.
If a recalcitrant employer either refuses to engage – or perhaps more likely, takes a laissez-faire approach to these issues – that employee could in theory commence proceedings.
Secondly, equality law allows an employee to seek redress from the Workplace Relations Commission in circumstances where they are the subject of discrimination under one of the protected grounds.
A transitioning employee, to take one example, could argue that they had been discriminated against and could certainly bring a claim.
While cases to date in the statutory tribunals have not been very frequent, there is no doubt that discrimination against an individual on the basis that they are transitioning from one sex to another is unlawful.
This issue was considered in a 2011 case where a woman was awarded €35,000 in the first transgender discrimination case recognised by the Equality Authority in Ireland.
Her employer was determined to have treated her in a discriminatory manner – and the case is perhaps a textbook case in how not to deal with these issues.
The employee was asked to conduct certain work on behalf of the company in her former male identity, was prohibited from using the female restrooms and eventually was required to work from home due to a “lack of office space”.
Clearly, therefore, legal remedies are available to employees should they suffer as a consequence of their preferred gender identity and it is highly likely that the approach taken by the statutory tribunals in 2011 would continue to be taken. Likewise, employees in this position who suffer harassment have remedies available to them.
All of that said, the existence of a legal remedy does not in itself act as a panacea.
The tribunals can award damages in circumstances where an individual’s rights have been breached but they do not function as some kind of ongoing monitoring system in the workplace to ensure that someone in transition is protected and comfortable. So an employee in this situation might receive compensation but have to return to a workplace that is hostile, even if not overtly so.
In fact, it is debatable whether employment law can perform this function at all – as always, that unquantifiable quality known as ‘workplace culture’ is the most important individual factor in all of this.
It is obviously important that employees have recourse to the law if needed – including the routes set out above – but in times of changing understanding of what gender identity truly means, the onus is on employers and HR managers to try to achieve real change and understanding.
Cultural change is the key, something that flows from real efforts on the part of management to create an inclusive workplace that is open-minded and tolerant. That takes real effort to achieve.
Perhaps the most important point to note is that it is actually in the interests of employers to try to fulfil this – no employer wants to be faced with a plethora of discrimination or other claims and one surefire way to guard against that is to create an inclusive workplace culture.
If you have any questions or queries on this topic, please contact Patrick Walshe.