Hoosier Banker 33 chicago indianapolis st. louis milwaukee A full service business law firm with a simple promise – put you first 201 North Illinois Street, Suite 1400 Capital Center, South Tower Indianapolis, Indiana 46204-4212 T: 317.464.4100 | F: 317.464.4101 | salawus.com Growing in Indiana to meet your company’s legal needs STEPHEN STITLE | MARTHA LEHMAN | LARRY TOMLIN | ANDREW PODGORNY | BRANDT HARDY MARK WENZEL | DEBRA MASTRIAN | JOHN TANSELLE The information in this article is provided for general information purposes only and does not constitute legal advice or an opinion of any kind. You should consult with legal counsel for advice on your institution’s specific legal issues. 1 There are some exceptions, including a “ministerial exemption” for religious organizations. The exemption is limited in scope to cover only religious institutions and employees performing ministerial roles within religious institutions. uniformly enforced, did not favor one sex over the other or adversely affect/burden one gender. More recently, the EEOC and several other states and local jurisdictions outside of Indiana have taken the position that dress is a form of gender expression, and that employees should be allowed to dress according to their gender identity. Employers should review and, if necessary, update their dress codes in light of the Bostock ruling, and consider including a statement that employees may dress in accordance with their gender identity. Unless an employer has a bona fide occupational qualification (BFOQ) reasonably necessary to the normal operation of business which necessitates a gender-specific dress or grooming standard, employers should consider implementing gender-neutral dress codes and grooming standards. The focus should be on the apparel or accessories allowed or not allowed, without regard to gender. Employers should also use the name, pronoun (he/she/they) and title (Ms./Mrs./ Mr./Mx.) the employee prefers. Some states and municipalities (California and New York City, for example) require employers to use the name, pronoun and title the employee prefers, regardless of the person’s sex assigned at birth, gender, appearance or sex indicated on the person’s birth certification or identification (e.g., driver’s license). Transgender employees have sued employers because the employers misidentified them, or coworkers misused their pronoun. Such lawsuits may become more commonplace after Bostock. Intentional or frequent misgendering of an employee (using the wrong name, pronoun or title) may be viewed as evidence of discrimination (e.g., repeatedly calling a transgender man “her” or “Ms.” after the employee has requested use of he/him and Mr.). In guidance issued by the EEOC on June 30, the agency gave an example of discrimination when an employer fires an employee because the person was identified as male at birth, but uses feminine pronouns and identifies as a female. Employers may want to consider adopting a gender identity/transgender policy specifically addressing the above areas, in addition to addressing how transitioning on the job will be supported (e.g., procedures for adjusting personnel/administrative records and for developing a communication plan to coworkers). Such a policy not only supports diversity and inclusiveness, but also helps limit risk and potential liability. HB 2 A bank is a federal contractor under those executive orders mandating nondiscrimination and affirmative action if it has a bona fide federal contract (e.g., federal share and deposit insurance), is a fund depository (e.g., Treasury Tax and Loan accounts) or it processes U.S. savings bonds.
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