The Bathroom Dilemma in the News – Transgender Rights on the Front Page

The front page of last Sunday’s New York Times ​‘Styles’ section was almost entirely devoted to an article called ​“The Symbols of Change,” recounting how many public venues are converting from the traditional male/female restroom model to unisex restrooms.

On Wednesday, it was reported that a teacher in Texas is suing her school, claiming that she was fired for referring to a female-born, transgender student by a female name. According to the lawsuit, the teacher said that some days the student would ask to be called by a male name, and other days by a female name.

New York Governor Andrew M. Cuomo also just announced that he is proposing regulations which will outlaw discrimination against transgender people in all aspects of employment. See the announcement in a New York Times article.

This is just the news from the past two weeks.

These pieces all discuss what I regard as the civil rights movement of this generation – the advances in the rights of gay and lesbian individuals, and the creation of rights for those who identify as ​‘transgender.’ What the news did not discuss in detail, however, is how these advances are changing how many employers must manage their workplace.

There is currently no federal law which specifically prohibits discrimination against gay and transgender employees. A statute was proposed in July 2015 – the ​“Equality Act” – but it has not passed. See H.R.3185 — 114th Congress (2015-2016).

Title VII of the Civil Rights Act of 1964 does not expressly prohibit discrimination against transgender or gay employees. Nor does the Americans with Disabilities Act (ADA) recognize the condition of Gender Identity Disorder (GID) to be a ​‘disability’ under the law. Interestingly, the Family and Medical Leave Act (FMLA) also does not recognize GID to be a ​‘serious health condition,’ which would require FMLA leave.

On the other hand, the EEOC and many courts, starting with the Supreme Court in Price Waterhouse v. Hopkins, have recognized that ​‘sex stereotyping’ is a form of sex discrimination, and is thus unlawful under Title VII. Following Hopkins, a number of courts and the EEOC have recognized that an employer cannot discriminate against a male employee who appears effeminate, or against a female who appears (or dresses) ​‘like a man.’ Thus, while a gay or transgender employee may not be able to succeed with a Title VII claim that he/she was discriminated against based on gender identity or transgender status, he/she may be able to assert a claim of ​‘sex stereotyping.’

Where the federal laws may have lagged behind, many states and localities have taken up the slack. Currently, there are 19 states and a number of cities which prohibit discrimination against both gay and transgender employees. These include major cities like New York, DC, and San Francisco, just to name a few. See Non-Discrimination Laws Map.

There is also a gap between federal and state law in the ​‘disability’ area. For example, while GID is not recognized as a disability under the ADA, or a serious health condition under the FMLA, a number of state disability laws, including New York’s, do recognize this condition to be a disability. See New York City, N.Y. Admin. Code § 8-102.

So, before determining whether or not you must accommodate GID, be sure to check the law in your city or state.

It is not only the above mentioned laws and the EEOC which employers must consider. OSHA has recently issued a set of ​“Best Practices” for transgender employees, recommending that employers allow transgender employees to select the restroom of their choice. The ​“core principle” OSHA proclaimed, is that “[a]ll employees, including transgender employees, should have access to restrooms that correspond to their gender identity.” Under this guidance, a person who ​‘identifies’ as a man may use the men’s room, and a person who ​‘identifies’ as a woman may use the women’s room – even if that person has not gone through gender reassignment surgery. The agency also stated that a single use unisex restroom may also be acceptable.

The EEOC has likewise taken the position that “[a]ccess to restrooms, if available, is a major and basic condition of employment.” It has also asserted that the fact that other employees may be ​‘uncomfortable’ with a transgender employee in the restroom is not sufficient to justify denying a transgender employee access to the restroom of their desired gender.

More recently, the federal Office for Civil Rights (OCR) issued a potentially more controversial opinion finding that a high school had violated Title IX of the Civil Rights Act by requiring a transgender female to change clothes behind a curtain in the girls’ locker room. OCR took the position that this was a form of unlawful discrimination, as this student should have been allowed the same access to the female locker room as other female students. The school district had raised concerns about the privacy rights of other female students, which the OCR rejected. As of the last report, the OCR had given the district only 30 days to resolve the issue or face enforcement action.

These new laws and rulings, along with more vocal employees and an increasingly active plaintiffs’ bar, raise many potentially serious issues for employers. For one, you may have to provide transgender employees with equal access to all facilities – showers, restrooms, locker rooms – based on their gender identity. Such shared facilities may make some employees uncomfortable, at least initially, but from our experience, this has not been a major issue for most companies. It is important to provide some training and education to aid in the implementation of the new policy. Of course, employees must understand that those who harass or discriminate against their transgender colleagues, cannot be tolerated; just as someone who harasses or discriminates against any protected group will not be tolerated.

The world is evolving as we speak and the concept of gender is becoming more fluid. The key to compliance is understanding: understanding the law in your specific jurisdiction, revising your policies and practices, and investing the time to explain these laws to those who may have questions or concerns.