Would you know what to do if an employee tells you he or she is transsexual? Or if a gay employee is being harassed? Katrina Fox reports on the issues HR professionals need to be aware of when dealing with sexual minority staff.
Freak and "pervert" are just two of the names fans of Coronation Street will have witnessed Mike Baldwin call one of his factory staff, Hayley Patterson. Over the past few weeks the clothing factory boss has humiliated her in front of her colleagues - all because she happens to be a transsexual. Hayley was born biologically male, but believed she was really female, so has undergone surgery and other treatments to alter her body to match her mind. When Baldwin found out, he took great delight in tormenting her about her past.
But while the soap character may get away with it, real-life employers will not. Since the P v S ruling in 1996, which stated that transsexuals are covered under the Sex Discrimination Act, some employers have had to pay out a lot of money after been taken to industrial tribunals, accused of discrimination. Two months ago, transsexual pilot Kristina Sheffield was awarded £77,000 compensation after airline easyJet twice refused her an interview for a job.
Employers should also prepare themselves for more claims of sexual harassment brought by gay staff because of the Smith v Gardner Merchant case, warns gay rights group Stonewall. Last year it was suggested that there may be discrimination on grounds of sex when a gay man complained that a female colleague had been abusive to him because he was gay. He claimed she would not have treated a lesbian in a similar way. "I believe the case will open up claims by lesbians and gay men of sexual harassment which can be used to show sex discrimination," says executive director of Stonewall Angela Mason.
Other legislation sexual minority staff could use against employers to show discrimination are the forthcoming Human Rights Bill and the Sexual Orientation Discrimination Bill, which is still hovering in Parliament, although it looks unlikely to be taken up before next year. This would be primary legislation to prevent discrimination against gay staff.
While homosexuality is something that is accepted as a sexual difference, many HR professionals admit that they and other employees are unclear about the subject of transsexualism. Head of HR at The Body Shop Mark Barratt, when asked if transsexualism is specifically mentioned in the firm's harassment policy, queries, "Would it come under sexual orientation?".
And equal opportunities manager at Marks & Spencer Sheena Stockdale says that one of her employees, when talking about transsexuals, asked, "Is that the same as a paedophile?" Probably the most bizarre example of ignorance of the condition was shown in the Malone case. Malone was an RAF employee who worked in the live arms section with nuclear weapons. He was initially diagnosed as psychopathic and was taken out of live arms but still allowed to work with nuclear weapons. But when the diagnosis later became that of transsexualism, he was sacked. The implication here of course is that it is alright for a psychopath to have their finger on the button but not a transsexual.
HR staff have a plethora of issues to consider when dealing with sexual minority staff, in particular with transsexuals. If an employee tells you he or she is transsexual and will be living as a member of the opposite sex, how do you make this as smooth and trouble-free as possible for all concerned? "Encourage the transsexual employee to take a holiday," says Dr Stephen Whittle, president of pressure group Press for Change, which runs training courses for employers. "The senior manager should then write to all staff explaining what is happening and that he or she supports the employee and expects the staff to do the same."
Dr Tracie O'Keefe, clinical psychotherapist at the London Medical Centre and a specialist in sex, gender and sexuality says, "A good employer will allow the transsexual to take the relevant time off often needed for surgery as sick leave, treating them in the same way as any other employee who needs an operation."
"It is a good idea for organisations to keep a row of books or training videos on their shelves for staff to look at," she adds.
>From next year, all NHS staff will have access to a training video, Transsexuality and Equality in the Workplace, which is also available for private firms.
Sexuality or gender differences can make gay and transsexual staff a target for harassment. In one large organisation that boasts a good equal opportunities policy, a male-to-female transsexual employee is still called "he" by colleagues, more than two years after making the transition. This type of situation can be made worse when the harassment comes from the top - in another case a transsexual employee was being victimised by staff who were more senior than the personnel director. Some staff may also refuse to work with gay or transsexual staff because of religious reasons.
So what do you do in these circumstances? "We would see it as discrimination the same as if the person refused to work with a black or female employee," says equal opportunities manager at Portsmouth City Council Mo Love. "I would work hard to remind them they were recruited under an equal opportunities policy."
Not all employers would take the same stance though. Carol Nield, HR manager at Manchester Metropolitan University, says, "It is unacceptable for staff to refuse to work with a black person or a woman because of the numbers, but people may have stronger views with this sort of thing [transsexualism] and we would be more sympathetic towards them over it."
But this may not be a good move for an employer. "Where a person has tried to impose their religious beliefs, tribunals have not been supportive and are unlikely to be sympathetic," says head of employment law, also at MMU, Professor Patricia Leighton.
"HR staff must be prepared to stand up for the employee," says Whittle of Press for Change. "The whole point of anti-discrimination is that it cuts across the board."
Harassment from senior staff is more easily dealt with where HR directors sit on the board or the HR department has an executive member.
It is important for HR professionals to be aware of intersex categories, such as hermaphrodites or others, says O'Keefe, where the employee is often mistaken for a transsexual and subject to harassment. "There is also a growing transgender movement, which includes transsexuals but also incorporates people who consider themselves as neither or both sexes, or those who simply wish to experiment with different genders."
It seems that one large company in the US, Apple Computer, is already so forward-thinking that it prohibits such discrimination on grounds of "gender identity characteristics or expression" in its equal opportunities policy.
Toilets can become an issue, as in the US where a group of women in a company were angry about a male-to-female transsexual using the women's toilets. In some cases the transsexual has agreed to use the disabled facilities, such as Marks & Spencer but, as Stockdale admits, "We were let off the hock by the individual."
It is humiliating for a transsexual to use the toilet designated for their original biological sex and insulting to make them use the disabled ones, says Whittle.
The toilet issue is complicated by the fact that, despite all other documents permitted to be changed to reflect the transsexual's new identity, the birth certificate in Britain, unlike many other countries, is not. This leads to the anomalous situation where a transsexual is still legally considered a member of their original biological sex. But, says O'Keefe, a letter from the specialist treating the transsexual when they begin their transition, explaining their condition, is sufficient for an employer to allow the transsexual to use the toilet relevant to their new gender role.
HR staff may also be in the position of interviewing a post-operative transsexual, although they may not know the interviewee is transsexual, and the question of disclosure arises. Some transsexuals will not disclose the fact that they are transsexual, as it is irrelevant to the job. "But if a transsexual does disclose on the application form and does not get an interview, they could sue the employer for sex discrimination," warns Whittle.
If a transsexual is employed and does not disclose, their privacy can sometimes be compromised because of gossip among payroll staff. A person's National Insurance number identifies their birth sex and former name. Any name changes are listed only as aliases - a situation highlighted recently in Coronation Street where Hayley Patterson's payshp records her name as Harold.
Attention needs to be paid to other details too. One firm took on a transsexual employee, knowing she was transsexual, and gave her all the perks and benefits to which every employee was entitled, including private health insurance. But, although unwittingly, it had put itself in the position of being sued because the insurance company excluded transsexuals from its cover. If an employer does not provide its staff with valid insurance it lays itself open to legal action.
To help with such situations, a government consultation document is now being revised which will give employers guidelines on dealing with transsexual staff. It is expected to come out next year. Being informed of the key issues in relation to sexual minority staff is crucial for employers to prevent scenarios such as those played out in the nation's favourite soap. "HR people have an opportunity to help educate their workforce into being understanding about other people's varying identities," says O'Keefe. "They need to create an atmosphere where employees can feel comfortable talking to them."
And of course, the business benefits of having a diverse workforce speak for themselves. Stockdale at Marks & Spencer admits the company could not do without its gay male staff, who are highly creative. And, as gay comedian Kenny Everett so eloquently put it, "If you purged the BBC of all the gay people that work there, we'd be condemned to a lifetime of watching the test card."
Sainsbury's has had several transsexual staff who have gone through their transition while working in its stores. Its equal opportunity policy includes sexual orientation and this, together with transsexualism, is also specified in the firm's harassment policy.
"We treat harassment of sexual minority staff the same as any other group," says HR policy manager Robert Hart. "We also say that this applies regardless of the seniority involved, and the board approved this.
If an employee or group of employees refused to work with a gay or transsexual member of staff, the firm would support the latter, says Hart. He sees it as being discrimination in the same way as if the employee were black or female. "We had an Arab man who did not want to work for a woman, so we said "hard luck".
This applied equally to customers who refuse to be served by transsexual or gay staff. The company had similar experience when the occasional customer refused to be served by black staff in the delicatessen of one of its stores.
Sainsbury's is also firm on the issue of which toilet a transsexual should use. "We are lucky as we have a selection of facilities. As well as staff changing rooms we have customer facilities which are single cubicles," says Hart. "Our experience has been that sometimes a transsexual has used the customers' facilities because they wanted to feel comfortable. But if they want to use those for the staff, we fully support them."
When staff have announced they are transsexual, Hart says they are asked how they would like to handle the informing of colleagues. Some people prefer HR to let people know and others prefer to announce it themselves.
Marks and Spencer has had experience of four transsexuals, one of whom made the transition while working as a sales assistant on the shopfloor. Equal opportunities manager Sheena Stockdale is enthusiastic about the company’s sexual minority staff. "We have a lot of gay men working for us, particularly in the selection departments, They are creative, highly capable people and we could not do without them."
Stockdale has taken a proactive approach to becoming informed about gay issues. "I have been to seminars and gay clubs up north and used gay people themselves as a sounding board for the issues."
When an employee has announced they are transsexual the company has brought in outside experts to educate the HR manager as well as other staff. The company has a policy of non-discrimination, although Stockdale admits there are always a few bad apples. "There are people, regardless of our policy, where transsexualism does not fall under the categories of discrimination. They say racism, for example, is appalling but there is an ominous silence when it comes to transsexualism."
In one store staff were unhappy about a male-to-female transsexual using the women's toilets. "The transsexual said they understood and were happy to use the disabled toilets," says Stockdale. But she admits the company was let off the hook in this case.