OPINION | Andre Vlok: Dealing with prejudice against trans co-workers | News24

Transphobic conduct in the workplace is as immoral as it is illegal, but as Andre Vlok points out, it can be addressed effectively using the conflict tools.

There are several practical conflict resolution measures an employer or employee can apply to rid their workplaces of transphobic behaviour or at least minimise such conduct.

My own work in this area shows that this type of workplace conflict often arises more from ignorance as to the issues involved than from actual malice or prejudice. A look at some of the actual instances of such conflict may serve to highlight this critical first step, and show the difference between bias and possible ignorance. 

• Transgender employees are prejudiced in applying for work, in their promotion expectations, in the assigning of work and opportunities.
• They face prejudice and workplace complaints, performance criticism and disciplinary action, which gets disguised under other apparent workplace offenses.
• Transgender employees face possibly unintended consequences and prejudice in implementing existing workplace policies that may not understand or be drafted with the correct requirements in mind, such as access to health benefits and services, sick leave calculation, access to medical benefits by spouses and so on. 
• Transgender employees often complain about a lack of privacy and understanding involving their private experiences, including those that have absolutely nothing to do with the workplace. 
• Transgender employees report a high incidence of harassment at the workplace, whether that involves insults, exclusion, taunting, threats and even physical and sexual assaults and harassment.
• Experiencing a lack of workplace facilities such as change rooms, toilets, accommodations as far as dress code are concerned, and the right to change their name to their new chosen name. 

It is clear that the boundaries between intended prejudice and unintended (because not considered) consequences may become blurred at times, which could have legal implications, but remain cold comfort to the victims.

Remedies for the employer 

There are several pieces of legislation that the employer can use to build a framework where transphobia is effectively dealt with at their respective workplaces. Here the Employment Equity Act is of particular importance, with the Labour Relations Act, the Basic Conditions of Employment Act and a few others of practical assistance.

A prudent employer will draft their own internal policy dealing with these workplace matters involving the interests of transgender people and possible conflict. An absence of such a policy can prove to be as harmful as a badly drafted one.

READ | OPINION: Cassandra Roxburgh – Navigating being transgender in the work environment

The new Code of Good Practice on the Prevention and Elimination of Harassment in the Workplace may also prove to be a very effective tool in combating any transphobic conduct. It requires the employer to create and implement its own workplace systems and processes to deal with workplace harassment, and this may, in practice, dovetail effectively with the needs raised in our discussion here.

Such a workplace policy in general and the Code, in particular, requires an initial training/coaching component and a measure of skills transfer to existing departments or designated employees.

Employers also need to be vigilant in not just using such policy or the Code for guidance but letting a workplace culture of transphobia remain intact. Such policies, while technical and potentially intricate at some level, also should simply recognise that transgender people seek no more than being treated with dignity and in the same way as any other employee.  

Remedies for transgender empoyees 

The abovementioned legislation and policies in theory protect the transgender employee from prejudice and workplace abuse. To that can, of course, be added a range of Constitutional rights. In reality these well-defined rights often do not translate into absolute protection for the transgender employee, with direct or indirect victimisation, exclusion, career sabotage and a range of other results being reported by such employees after using these remedies.  

While these remedies are certainly effective up to a point, they also tend to destroy the already pressurised working relationship, especially the external, more litigious options.

READ | How do you treat a trans co-worker? Hint: just like any other co-worker

Obviously, there may come a time when such options are the only remaining responses, but one’s career at a workplace remains a high price to pay for principles, and there are other effective conflict resolution tools a transgender employee should consider and adopt as a matter of first instance. 

Effectively done, these tools realistically transcend the conduct complained of, and restore the working relationship without either “side” or interest being prejudiced. Several national examples of such workplace successes exist already, and work done with the new Code anticipates further workplace progress. 

Here, the main philosophy should be that the working relationship needs restoration. This should, where possible, not be based on the breach of a rule as a restoration of a relationship. The transgender employee can effectively address this by practical remedies such as:

• Ensuring proper workplace systems and processes (see the new Code), and insist on being a part of the drafting and implementation of such Code or policies,
• Where necessary, educate employers and colleagues, in a constructive manner, and try to make such educational efforts a part of the process itself,
• Patiently and constructively point out workplace culture habits that may be working against new policies. Employers at senior management level are often not aware of remaining toxic practices,
• If there is any level of employee representation at the workplace (usually a labour union) sit with them and have a constructive discussion as to their level of understanding of your rights and challenges, how they intend to address issues impacting transgender people,
• Remind yourself that this is hard work, that patience and persuasion could be in your better interests in the long run than a hostile campaign, especially in the early days of your efforts, and that as hurtful as some of your workplace experiences might be, these relationships may need to be healed and educated rather than destroyed,
• Insist on skilled mediation being introduced as one of the disciplinary processes at your workplace, as this reduces the old-style conflict based hearings, reduces potential abuse of these systems by management and offers a more effective way of resolving actual workplace disputes. 

Remedies for other employees

Other employees who may wish to act as allies for transgender employees can be very effective in advocating for fair and inclusive internal processes or Codes (including transgender employees’ input in the design and implementation of such processes), speaking out firmly against toxic workplace culture practices that entrenches or perpetuates such conflicts (mostly found in the shape of “jokes”, slurs, physical behaviour and subtle operational practices involving promotion).

This need not be active campaigns but can be very effective even at the level of a comment against such practices, support for transgender employees and causes, and normal behaviour that simply recognise the humanity and dignity of all employees.

Instances of workplace transphobia where management remains unaware of such challenges, or where they may actively encourage such behaviour, will sooner rather than later end up in some very negative results for such employers.

In instances where such workplace transphobia manifests in serious risks to all concerned, but where the employer wishes to remedy such situation, an initial phase using professional external help which then leads to an eventual internal set of processes as we have discussed above is recommended. Other than that, any significant workplace transphobic conduct is as immoral as it is illegal, and it can be addressed effectively using the conflict tools already mentioned. 

– Andre Vlok is a negotiator, conflict and employment dispute specialist and based in Port Elizabeth.

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