Ask the Legal Expert about ... transgender employees

John Durso, Esq.  Nixon Peabody LLP
John Durso, Esq. Nixon Peabody LLP

There's a CNA in our building who is transitioning from male to female. We suspect this will make some residents uncomfortable. What should we do?

Making residents “uncomfortable” could be grounds for employee discipline or termination if related to language or behavior or improper treatment of residents (e.g., verbal or physical abuse of a resident).  However, it is likely impossible to fire, demote or discipline an employee because of his or her change in gender identity.

Generally, the decision to fire, refuse to hire, refuse to promote or discipline an employee should be made based on merit and job performance. If the transgender employee were to bring suit based on discrimination or wrongful termination, the decision would turn on the anti-discrimination federal law and the laws of your state.

While Congress has failed to act on non-discrimination law protecting LGBT Americans, President Obama signed an executive order in July of 2014 prohibiting employment discrimination by federal contractors and subcontractors against LGBT workers. The executive order added the phrases “sexual orientation” and “gender identity” to federal anti-discrimination language.

Nursing homes receiving Medicare are among the entities that need to change their policies to comply with the executive order.  

 If some residents are uncomfortable with the transgender issues facing your employees, do your best to accommodate their insecurities through work scheduling, without firing or demoting the transgender employee. 

In sum, research the laws of your state and consider your status as a federal contractor before making employment decisions based on gender identity.