31 May 2016

Whose Bathroom is it Anyway?

Few issues have generated as much recent controversy in the American workplace as the movement to protect transgender workers from employment discrimination, including the awkward topic of bathroom use based on gender identity. This highly polarizing subject has pitted those who endorse diversity and inclusion of the LGBTQ community against those who believe it reflects a loss of family values. It’s one of the most rapidly evolving trends in employment law for HR to contend with.

A 2011 study estimated that there may be upwards of 1 million transgender individuals in the U.S. (UCLA’s Williams Institute). That number may increase as employees become emboldened by the current spotlight shining on workplace rights and accommodation of employees who manifest a gender expression different than their birth gender.

The spotlight has been fueled by an explosion of entertainment tabloids, daily news stories and the power of social media ‘buzz.’ We’ve all read the national news about the economic and public relations fallout from North Carolina’s controversial “Bathroom Law.” This issue is not going away anytime soon.

Federal Agency Activism
Many of the agencies that enforce federal employment laws have recently taken very public steps in an attempt to ‘move the needle’ to protect transgender status/gender identity from employment discrimination as another form of sex discrimination. Congress has attempted and failed many times to expand Title VII to include gender identity and sexual orientation. These agencies are no longer waiting for Congress to act.

Their launch pad is a 25-year old U.S. Supreme Court decision holding that unlawful sex discrimination includes adverse treatment of an employee because he/she engages in attire, grooming and behavior that is not consistent with traditional gender stereotypes for men and women. Many courts have adopted this view in the years since. Relying on that Supreme Court case, in 2012 the EEOC ruled that ‘sex stereotype’ discrimination theory also applies to a transgender worker. In 2015 EEOC went further and determined that this line of discrimination theory also applies to sexual orientation, because ultimately, an adverse employment decision against an LGBT person is “based on sex” of the person.

In 2014 President Obama passed an Executive Order that prohibits federal contractors/subcontractors (covering about 25 percent of the American workforce) from discriminating against applicants and employees based on gender identity and sexual orientation. In 2015 OSHA relied on its general Sanitation Standard regulation and issued guidance that employees must be allowed to use a bathroom that coincides with their gender identity, regardless of birth gender. Otherwise, according to OSHA, workers will feel stigmatized and elect not to use any bathroom, resulting in a physical and mental health hazard. The U.S. Departments of Justice (DOJ) and Education (DOE Title IX) have taken similar positions.

Private Sector Employers Too?
Many of these recent agency developments involve federal employee cases, or federal administrative policy guidance. As a result, they do not necessarily have the force of law binding private sector employers. However, the handwriting is on the (bathroom) wall. It’s clear how EEOC, DOL, DOE, DOJ and OSHA are leaning, and they’ve taken legal action against private sector employers.

The EEOC is now accepting discrimination charges based on transgender status and sexual orientation. In 2014 and 2015, the EEOC filed lawsuits against private sector employers alleging discrimination or harassment based on transgender status. In March 2016, EEOC filed its first lawsuits against private sector employers alleging that harassment against employees based on their sexual orientation is unlawful sex discrimination under Title VII.

These cases will soon be winding their way to federal courts to decide whether they, too, will expand the sex stereotyping theory to encompass transgender status, gender identity, or sexual orientation. When issued, those decisions will clearly become binding on private sector businesses within the reach of those courts.

Practical HR Advice While It All Shakes Out
There are several steps employers should be taking now to prepare. These include:

  • EEO Policy. Consider whether to expand protected groups. It may depend on Company culture, diversity & inclusion philosophy, recruitment efforts, public relations, federal contractor obligations, or customer expectations.
  • Harassment Complaints. Treat complaints of harassment, threats or violence based on an employee’s gender identity or transgender status in the same manner as you would for any other complaint. Investigate promptly and take appropriate remedial action. Don’t forget to build this into regular harassment training of managers and employees, and be sure to document it.
  • Pre-Employment Screening. The name and gender of an applicant will likely correspond to their current expression. Background, criminal and driving record checks may involve something different. As will the common internet searches (Google, LinkedIn, etc.) if conducted on an applicant.
  • Names/Pronouns. Several EEOC cases have involved the emotional issue of a supervisor or co-workers who refused to use an employee’s preferred new name as presented. Changing a name and gender can involve a new self-identification form, EEO-1 Report designation, change to HRIS records, etc.
  • Dress/Uniform Policy. EEOC will likely take the position that a uniform or dress code should be applied to an employee consistent with their gender identity. This will undoubtedly be a very challenging issue during a transitioning period.
  • Bathrooms/Locker Rooms. Will be covered in the next article on gender stereotypes so stay tuned!

If you have any questions about this article or other employment discrimination issues, please contact the author or your Miller Johnson employment attorney.