BY SCOTT M. PORTER AND ERIC S. FISHER
Labor and Employment Attorneys at Taylor English Duma LLP
The recent case of Coy Mathis—the transgender Colorado six year old whose parents are suing the child’s school for not allowing her to use the girls’ restroom—has brought the issue of transgender rights to the forefront of the national conversation.
But these developments in the law should bring the issue to the attention of employers as well. Employers take note: if your company has not done so already, it must begin to adjust its policies, procedures, and possibly even facilities, to accommodate transgender employees. While the statistical data available regarding the American transgender population is incomplete and most likely unreliable, the number of transgender individuals living in the United States is probably much higher than many have believed. Even if your company does not currently have any transgender employees, the potential ramifications of being unprepared to accommodate such individuals appear to far outweigh the likely costs of bringing the company’s policies and procedures up to date.
Recently, the U.S. Equal Employment and Opportunity Commission (EEOC) recognized that discrimination based on transgender status is cognizable under both Title VII of the Civil Rights Act of 1964 (Title VII) and the Equal Protection Clause of the Fourteenth Amendment of the U.S. Constitution. In Macy v. Holder, the EEOC determined that discrimination based on gender identity, change of sex, or transgender status constitutes sex discrimination under Title VII. Specifically, the EEOC concluded that “claims of discrimination based on transgender status, also referred to as claims of discrimination based on gender identity, are cognizable under Title VII’s sex discrimination prohibition…” The EEOC reasoned that, “if Title VII proscribed only discrimination on the basis of biological sex, the only prohibited gender-based disparate treatment would be when an employer prefers a man over a woman, or vice versa. But the statute’s protections sweep far broader than that …” The EEOC further explained that, “when an employer discriminates against someone because the person is transgender, the employer has engaged in disparate treatment ‘related to the sex of the victim.’”
Additionally, recent federal court decisions, as well as many state and local jurisdictions, have created precedents and laws that prohibit discrimination against transgender people in employment. Among the jurisdictions that already have laws in place are some of the largest cities in America, including New York, Los Angeles, Chicago, Dallas, and Atlanta. An up-to-date comprehensive list of relevant laws can be found on the Transgender Law and Policy Institute’s website at www.TransgenderLaw.org.
The recent move towards increased judicial, administrative, and legislative protection of transgender employees highlights the need for employers to immediately begin the process of ensuring equitable workplace practices for such employees. Oftentimes, employers with good intentions are left with questions about practicality and concerns about other employees. A common area of confusion and debate is what employers should do about a transgender employee’s access to facilities such as restrooms and locker rooms. The Occupational Safety and Health Administration (OSHA) requires that employers make toilet facilities available so that employees can use them when they need to do so, and the employer may not impose unreasonable restrictions on employee use of the facilities.
However, because the term “transgender” encompasses “a broad range of people who experience and/or express their gender differently from what most people expect—either in terms of expressing a gender that does not match the sex listed on their original birth certificate, or physically changing their sex,” transgender people often face the burden and distraction of being confronted or questioned by a new employer or coworkers about which gender’s restroom they should use. Wherever possible, single-occupant facilities should be made available to, but not required for, transgender employees. (This may be especially helpful during a period of gender transition.) Employers should permit transgender employees to use the facilities of their chosen gender—even if that makes other employees uncomfortable. For individuals who are uncomfortable sharing facilities with a transgender coworker, employers should direct that employee to take advantage of the single-occupant facilities. An uneasy employee likely cannot successfully sue an employer simply for being made to share a bathroom with a transgender coworker or use a single-occupant facility. In contrast, if an employer forces transgender employees to use facilities that correspond to their birth gender instead of their chosen gender, that employer risks a bias lawsuit.
No single solution will work for every worksite and, as a result, employers handle restroom access issues with respect to their known transgender employees in a variety of ways depending on the size of the company, the resources available, the type of work performed by the company’s employees, and many other factors. Some employers implement workplace-wide restroom access policies, while others work to create a solution that fits the needs of the unit and the employee. All employers need to find solutions that are safe, convenient, and respectful of transgender employees. Working with the company’s human resources personnel to devise a practical and dignified solution to restroom access issues is essential. Your company’s employment counsel should also be willing, and able, to visit your company’s facilities and work with the company to devise a policy and training strategy.