Gender Identity in the Workplace

Every-one is talking about Caitlyn Jenner (formerly known as Bruce Jenner). This global conversation has put the spotlight on gender identity and serves as a reminder that it is against the law to discriminate against any-one in the workplace because of their actual or assumed sexual orientation or their gender identity.

Australian law protects all employees from discrimination at all stages of employment including recruitment, workplace terms and conditions and termination of employment.  This protection extends to transgender employees. Transgender means any-one who lives, has lived, or wants to live as a member of the opposite gender (sex) to their birth gender. A person may identify as a member of a particular gender by the way they dress, a name change or medication intervention (e.g. hormone therapy), counselling or sex reassignment surgery.gender identity

Therefore, under Australian law, all employers must treat all employees fairly despite their gender identity. It doesn’t matter whether the employee has had a ‘sex change’, whether they are or are not taking hormones or whether they live as their preferred gender. Essentially, you should treat the employee in the way they wish to be treated vis a vis their gender identity. For example, a transgender may still wish to be addressed as their original gender, or they may wish to be known as their preferred gender. They may even wish to set an official date from which they will always be known as their preferred gender. It depends on the individual and their wishes ought to be respected.

If an employee decides to undertake a ‘change over’ into their preferred gender whilst in your employment, it is best to ask them how they wish to be treated and then abide by their wishes. More importantly, ask the employee how they wish to handle the transition period with their colleagues e.g. some may wish to talk about the ‘change over’ with their colleagues, or they may want management to talk to their colleagues about the ‘change over’ for them. Some employees may want a period of leave before coming back as their preferred gender. The ‘change over’ period must be handled delicately and sensitively, and always in consultation with the transgender employee.

It is management’s legal responsibility to make sure, to the best of their ability, that no-one (including transgender employees) is harassed when working for them. If a colleague refuses, for example, to work with a transgender employee, or refuses to be supervised by a transgender employee, or even refuses to share toilets with a transgender employee, this amounts to transgender harassment and is against the law.

It is imperative that all employers set guidelines as to what is acceptable and professional workplace behavior. Additionally, employers need to implement grievance procedures to deal with all types of harassment and discrimination (including transgender discrimination). All employees need to be advised and educated that transgender harassment is unacceptable in the workplace and is also against the law. Ongoing transgender harassment and discrimination will result in disciplinary action.

Managing Work Life Balance

Workplace flexibility has become an essential component of any attraction and retention strategy. In fact, flexibility in the workplace is one of the key factors in maintaining an employee’s motivation, loyalty and commitment to their employer.Managing your balance

Certain employees have the right to request flexible working arrangements. Employers can only refuse these requests on reasonable business grounds. An example of a flexible working arrangement can include a change in location (e.g. working from home) or a change in hours of work (e.g. changes to start and finish times).

Under current law, employees who have worked with the same employer for at least 12 months can request flexible working arrangements if they:

  • are the parent, or have responsibility for the care, of a child who is school aged or younger;
  • are a carer (under the Carer Recognition Act 2010);
  • have a disability;
  • are 55 or older;
  • are experiencing family or domestic violence; or
  • provide care or support to a member of their household or immediate family who requires care and support because of family or domestic violence.

An employer can only refuse a request for flexible working arrangements on reasonable business grounds. An example of a reasonable business ground is the requested arrangements are too costly or other employees’ working arrangements can’t be changed to accommodate the request.

Outside of the categories regulated by law, “Employers of Choice” are allowing other employees to alter their working arrangements either on an ad hoc basis or on a more permanent basis. Today is the age of the “digital worker” and half of Australia’s working population use the internet to work from home or on the go. Many employers recognise that there can be many benefits in an employee working from home e.g. more often than not workers who work from home don’t work a standard 9am to 5pm day but end up working longer hours and thus there is increased opportunities to get the work done.

Additionally, there are financial benefits to employers having employees work from home. Employers with a home workforce (or part home workforce) save money on overheads, desk space and absenteeism at work becomes a non-issue.

Given the law surrounding flexible working arrangements, it is therefore necessary for employers to implement an ongoing communication strategy to ensure employees are aware of workplace flexibility, and managers and staff know what is available and how a flexible work arrangement can be established.

The development of a flexible work strategy will contribute to an organisation’s “Employer Brand” and will greatly assist in the attraction and retention of staff.

Working Flexibly? Make it Work

Flexible work is mainstream now – at least it is supposed to be.  We now have a legislated right to parental leave, and a legislated right to request a flexible work arrangement and have it considered.Working Flexibly

Getting a proposal request right and approved is one thing, but making your arrangement work once it is approved takes hard work and lots of communication.

Here are some tips from those who have done it successfully:

  • Make sure you understand what the impact will be on your budget and be clear about your career development expectations while working flexibly.  A conversation now may save misunderstanding later.
  • Have a communication plan to ensure it works for you and everyone in your team – who will be responsible for contacting clients.  Are you prepared to answer urgent emails and phone calls when not in the office?   Your ‘out of office’ message should state who should be contacted in your absence.
  • Are you able to change your days or hours if you are needed – if so make sure your supervisors know what you can and can’t do – for example if you have dependents you may be limited by the days of care that is available.
  • If you do work additional hours or days, then assuming your billable hours targets are being met, ask how will this be remunerated?
  • Talk to people who are working flexibly and successfully – they will be able to help you if you have issues to address.
  • Find someone to take responsibility for your matters when you are not in the office – and use this as an opportunity to develop and mentor that person.  This will be to your mutual advantage.
  • Over communicate  – remind people when you will be away from the office, when you will not be available, when you can be available if you are not normally available, what needs to be done between periods at work.
  • If problems arise – with communication, expectations of workload, disappointments – don’t obsess and worry about it.  Start a conversation, however difficult, at the earliest opportunity before the problem gets bigger.

The key to any successful flexible working arrangement is open communication and support.