08-03-2016
By Jody Stein, Esq.
"Bathroom bills" made numerous headlines in the first half of 2016. These bills aimed to regulate where transgender individuals should go to the bathroom. But the debate about bathrooms seemed really to be a national battle over how we view and treat transgender people. For employers, these issues are particularly important and legally uncertain. Are transgender employees legally protected? How should an employer respond to transitioning employees?
To begin, there has been a recent proliferation of guidance for employers on which restrooms transgender employees should select when restrooms are divided by gender. In June 2015, the Occupational Safety and Health Administration ("OSHA") issued one of the first federal guidelines with A Guide to Restroom Access for Transgender Workers. It recommended allowing employees to self–select their bathroom based on their gender identity. Gender identity has been defined as an individual’s own perception of self as male, female, or in some instances a blend of both or neither. In the case of a transgender individual, that perception of gender is different from the sex assigned to them at birth.
OSHA mandated that all employers provide “employees with sanitary and available toilet facilities so that employees will not suffer the adverse health effect that can result if toilets are not available when employees need them.” After consulting with experts, OSHA concluded that transsexual employees should be able to work as whatever gender they live as outside work. Employees should not be restricted to restrooms that are inconsistent with their gender identity or directed to use only single-occupancy bathrooms. Such measures have the effect of singling them out and/or making them fear for their safety. Should transgender employees avoid using the bathroom because of restrictions placed on them, they could cause themselves serious physical injuries or illnesses.
In March 2016, North Carolina made headlines with its transgender “bathroom bill.” Its bill was a reaction to the city of Charlotte’s new legal ban on transgender discrimination and allowance of transgender individuals to self-select their restrooms. Known as House Bill 2, North Carolina put into place a statewide ban on individuals using a public bathroom that does not correspond to their biological sex and prohibited cities from broadening nondiscrimination laws. This law is now the subject of dueling suits between the U.S. Justice Department and North Carolina. North Carolina has claimed that it does not treat transgender employees any differently than non-transgender employees while the U.S. has contended that the state law is a violation of civil rights.
The U.S. Equal Employment Opportunity Commission (“EEOC”) wholly rejected North Carolina’s stance and issued its own Fact Sheet: Bathroom Access Rights for Transgender Employees Under Title VII of the Civil Rights Act.1 In that fact sheet, the EEOC relied on its own ruling that Title VII’s prohibition on sex discrimination included transgender status. It also utilized its decision in Lusardi v. Dep’t of the Army (Mar. 27, 2015), regarding bathroom use. In that case, the EEOC held that:
“denying an employee equal access to a common restroom corresponding to the employee’s gender identity is sex discrimination; an employer cannot condition this right on the employee undergoing or providing proof of surgery or any other medical procedure; and an employer cannot avoid the requirement to provide equal access to a common restroom by restricting a transgender employee to a single-user restroom instead (though the employer can make a single-user restroom available to all employees who might choose to use it).”
The EEOC's fact sheet included a statement that state law would not be a defense to Title VII, a likely reference to North Carolina.
The EEOC's stance was also predicated upon a recent Fourth Circuit Court of Appeals case. In G. ex.rel. Grimm v. Gloucester Cty. Sch. Bd., a transgender high school student was not permitted to use the bathroom aligned with his gender identity. Students are protected from sex discrimination under Title IX of the Education Amendments Act. Title IX’s prohibitions against sex discrimination are generally interpreted in the same way as the parallel provisions in Title VII. The court of appeals ruled that Title IX entitled students to use the bathroom that was consistent with their gender identity. The Department of Education issued its own education guidance directing schools to allow transgender students to use the bathroom that matched their gender identity.
The U.S. Supreme Court has not yet ruled whether transgender discrimination is part of Title VII’s ban on sex discrimination. However, as of June 2016, California, Colorado, Connecticut, Delaware, Hawaii, Illinois, Iowa, Maine, Maryland, Massachusetts, Minnesota, Nevada, New Jersey, New Mexico, Oregon, Rhode Island, Vermont, Washington, and the District of Columbia have state laws that offer some prohibitions on discrimination against transgender people. Some 200 cities and counties have banned gender identity discrimination. Governors in Indiana, Kentucky, Michigan, New York and Pennsylvania have issued executive orders banning discrimination against transgender state workers. This list of states and localities may be found on the ACLU’s website.2
Workplace Policies For Transitioning Employees
What should an employer do when an employee confidentially shares a desire to transition?
It can be a complicated situation to protect the privacy of an employee transitioning because it is something that may become obvious to the whole workplace. Some individuals may choose medical treatment to transition such as counseling, hormone therapy, electrolysis, and/or reassignment surgery. Other individuals may choose not to undergo any medical treatments. Irrespective of how an employee transitions, creating a culture of acceptance and inclusion from the top down will help all employees. Some employees may not be comfortable with changes to another employee’s gender and the EEOC’s own guidelines recognize the right of each individual to his or her beliefs. Those guidelines remind employers that non-discrimination policies address conduct in the workplace, not personal beliefs. Thus, anti-harassment policies that clearly communicate any harassing conduct is unacceptable and training that includes transgender sensitivity are of paramount importance.
Having a plan in place before that employee comes to share information about transitioning will put the employer in the best possible position. The Human Rights Campaign recommends that any workplace gender transition plan include the following elements:
- A designated administrative person to help with transitioning employees.
- Notification to the transitioning employee about what he or she can expect from management.
- Enumerate management’s expectations from the staff and transitioning employees to facilitate a successful transition.
- A communications plan for co-workers and clients.
- Outline general procedures for making changes to necessary records such as health plans and name changes.
The gender transition plan should be widely accessible to and shared with employees.
The Society for Human Resources Management (“SHRM”) has offered suggested dos and don’ts on how to respond when an employee shares an intent to transition. The federal government via the Office of Personnel Management has established guidelines for federal agencies that are very similar. Every transition will be different so each response must be tailored to the individual situation. Some suggested “dos” were:
- Treat the transgender employee with dignity and respect.
- Let the employee set the timetable and regulate the amount of privacy.
- Information should not be released without the employee’s authorization.
- The employee should decide how to tell co-workers.
- The employee should determine the pronouns and names to be used when speaking to that individual and about that individual.
- Be vigilant in looking for potentially harassing situations.
In terms of “don’ts” for employers, the following guidelines were recommended:
- Do not ask personal questions about any steps taken by the person towards transition, such as medical procedures.
- Do not make assumptions about the person’s sexual orientation or evaluate them based on idealized gender standards.
- Avoid gender stereotypes in dress code policies.
- Do not disclose information about the employee’s transgender status without authorization.
SHRM has suggested that the person be considered a member of his or her original gender until the individual begins to present himself or herself in the new gender role at work. Once that occurs, the employee should be treated as a member of the new sex.
Conclusion
Rights for transgender individuals are continuing to evolve at a fairly rapid rate. More decisions are likely to be handed down from the federal courts on whether Title VII includes a ban on transgender discrimination. The Patient Protection and Affordable Care Act, Americans with Disabilities Act and Family and Medical Leave Act should also be considered for any possible application to transgender individuals. Employers should review workplace policies with legal counsel to ensure compliance with gender transition issues. Employers who can be flexible and create an atmosphere of inclusion with policies in place should be better prepared for the evolution of the law in this area.
