Guest Column

Whose bathroom is it, anyway?

June 3, 2016
TAGS bathroom / use
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Few workplace issues have generated as much controversy as the recent movement to protect transgender workers from employment discrimination, including the awkward topic of bathroom use based on gender identity.

This 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 HR faces in employment law.

UCLA’s Williams Institute estimated in 2011 that there may be upwards of 1 million transgender individuals in the United States — a number that may increase as employees become emboldened by the current spotlight on workplace rights.

Many agencies that enforce federal employment laws have recently taken very public steps to define transgender status/gender identity discrimination as another form of sex discrimination. Congress has tried 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 the 25-year-old U.S. Supreme Court decision holding that unlawful sex discrimination includes mistreatment of an employee who engages in dressing, grooming and behavior that is not consistent with traditional gender stereotypes for men and women (Price Waterhouse v. Hopkins). Many courts have adopted this view in the years since.

Relying on that Supreme Court case, in 2012 the federal Equal Employment Opportunity Commission ruled that “sex stereotype” discrimination theory also applies to a transgender worker (Macy v. Holder). In 2015, the EEOC went further and determined that this line of discrimination theory also applies to sexual orientation, because an adverse employment decision against an LGBT person is “based on sex” of the person (Baldwin v. Foxx).

In 2014, President Barack Obama announced Executive Order 13672 that prohibits federal contractors and subcontractors (covering about 25 percent of the American workforce) from discriminating against applicants and employees based on gender identity and sexual orientation. In 2015, the Occupational Safety and Health Administration issued policy 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 and Education have taken similar positions.

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, OSHA and the departments of Labor, Education and Justice are leaning, including taking 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, the EEOC filed its first lawsuits against private-sector employers alleging that harassment against employees based on sexual orientation is a form of unlawful sex discrimination under Title VII.

These cases soon will wind their way to federal courts to determine whether they, too, will expand the sex stereotyping theory to encompass transgender status, gender identity or sexual orientation. Those decisions clearly will bind private-sector businesses within the reach of those courts.

Employers should consider taking several steps now to prepare, including:

EEO policy: Consider whether to expand protected groups. It may depend on company culture, diversity and 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 you would any other complaint. Investigate promptly and take appropriate remedial action. 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 his or her current expression. Background, criminal and driving record checks may involve something different, as will the common Internet searches (Google, LinkedIn, etc.) that HR staff members tend to conduct on an applicant.

Names/pronouns: Several EEOC cases have involved the emotional issue of supervisors or co-workers who refused to use an employee’s preferred new name. Changing a name and gender can involve a new self-identification form, EEO-1 Report designation, change to Human Resource Information System records, etc.

Dress/uniform policy: The EEOC will likely take the position that a uniform or dress code should match an employee’s gender identity, regardless of birth gender. This can be challenging during an employee’s transitioning period.

Bathrooms/locker rooms: Some employers have provided separate and comparable bathroom or changing facilities for transgender workers, often triggered by co-workers’ concerns and many times not challenged by transgender employees. So far, there is little in the way of definitive court decisions to give employers direction. But employers should know that EEOC, OSHA, DOJ and the Office of Federal Contract Compliance Programs each take the position that denying a transgender employee use of a bathroom consistent with the individual’s gender identity violates laws or regulations enforced by those agencies. In public schools, the DOE’s Office of Civil Rights similarly takes the position that providing “separate but equal” bathrooms violates Title IX. In April, the Fourth Circuit Court of Appeals agreed.

The tempest has been fueled by 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.

Gary A. Chamberlin practices employment and labor law in the Grand Rapids office of Miller Johnson. He can be reached at chamberling@millerjohnson.com or (616) 831-1709.

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