Are you human? Are you a good human? These are the questions employers should really be asking—the days of gender roles and glass ceilings should be behind us. So why do handbooks, employment agreements, and interview questions still run along gender lines? What is the point of using “him/her” or “s/he” in a handbook when “you” or “the employee” conveys the point just as easily? If the document is used at the start of employment, like a handbook or employment contract, why would a company want to potentially offend its new employee from Day 1? In recent years, employers are taking a hard look at their communications to ensure they are promoting the principles of diversity, equality, and inclusion in order to eliminate bias.
The purpose of gender-neutral language is to avoid word choices which may be interpreted as biased, discriminatory or demeaning by implying that one sex or social gender is the norm. For instance, an executive-level employment agreement in years gone by would almost certainly have been drafted to refer to a male filling the role, and, at best, there would have been a provision included in the boilerplate language at the end that “a reference to one gender shall include reference to the other genders.” Today, a template agreement is more commonly drafted in second person (you are entitled to these benefits and you are expected to fulfill these job duties) or third person (they/their/the employee). However, companies should consider the jurisdictions in which they operate when using “they” as a pronoun—since it can be interpreted as singular or plural, courts have not come to a unanimous interpretation of “they” in contracts.
The safest route is for a company to simply ask its employee their preferred pronouns and use those pronouns when drafting the document. Pronoun preference is not “one size fits all,” and what works for one non-binary person may not work for another. If the intent is to be inclusive, the individual’s views must be taken into consideration. Remember, though, when making changes to a template document, Find/Replace may not catch everything. Take the time to review the document and ensure it says what you want it to.
If you have questions or want assistance drafting gender neutral employment documents, reach out to Goosmann Law Firm’s employment attorneys today!