Q: This morning I interviewed an applicant for a clerical position in our company. She appeared to be an attractive, personable young woman and was very engaging during the interview. However, I soon learned that “she” is really a “he,” at least anatomically. She told me she is preparing to undergo a sex-change operation but hasn’t yet done so, although she has adopted a female identity. She asked whether, if she were hired, she would be permitted to use the women’s restroom. Frankly, I was a bit taken aback and didn’t know how to respond. I told her I would have to check into the matter. If I hire her, would I have to let her use the women’s restroom? Couldn’t I avoid the issue altogether by simply not hiring her?
A: I would strongly suggest you not attempt to avoid the issue by refusing to hire her. Not hiring her would very likely expose your company to a charge of discrimination — and, potentially, a lawsuit with exposure to damages for emotional distress as well as attorneys’ fees and costs.
Title VII Claims
Initially, federal courts uniformly rejected discrimination claims filed by transsexuals under Title VII of the Civil Rights Act 1964. However, two relatively recent U.S. Supreme Court decisions have eroded the basis underlying those decisions.
In one case, the Supreme Court rejected the notion that Title VII is limited to what Congress specifically intended to cover and that although lawmakers didn’t consider the application of Title VII to same-sex harassment, it falls within the statute. In the second case, the Court decided that Title VII prohibits more than discrimination based on biological sex and extends to the entire spectrum of sex discrimination, including discrimination based on gender stereotypes.
Since those two Supreme Court decisions, several federal courts have rejected the earlier line of cases and have held that transgendered individuals are protected under Title VII and other federal statutes that prohibit discrimination on the basis of sex.
State Statutes
Approximately one-third of the states have now adopted provisions that include “sexual orientation” or “gender identity” among the characteristics protected by their employment discrimination statutes.
I cannot imagine that a court would hold that a person’s self-perception of her identity as a woman would govern the permissible boundaries of bathroom etiquette rules, thus entitling her to use the restroom designated for the opposite sex. However, should you hire the applicant, you may want to consider whether it’s practical to make bathrooms unisex in your workplace.
Moral of the Story
The situation with which you’re faced underscores the breadth of the coverage our society has extended to characteristics protected from employment discrimination. Always think twice when you find yourself about to make an employment decision not grounded on an applicant’s qualifications for the job. You may be entering potentially dangerous territory from a legal perspective.
Robert Tinnin may be contacted at rtinnin@tinninlawfirm.com.
Thanks for sharing this, Robert. I’d like to add a few things.
In addition to 12 states and the District of Columbia, more than 100 cities and counties across the U.S. prohibit employment discrimination based on gender identity: http://www.hrc.org/issues/4844.htm
Clearly, most states and cities do not yet have such laws in place.
That being said, it’s also important to remember: what’s under a person’s clothes and what specific medical treatments an individual is/will be undergoing should generally not be anyone’s concern in the workplace. I’m not a HIPAA expert, but I believe HIPAA should also be taken into consideration.
This applicant would otherwise have passed as a woman to the hiring manager — although it is possible/likely that due diligence in the hiring process may have uncovered her transgender status via background checks, references, new employee paperwork etc. — but she chose to be open and upfront about it with the hiring manager.
In short, I agree that you should think twice about decisions not based on this applicant’s qualifications. Furthermore, should the applicant be hired, she should be permitted to use the women’s restroom. She should certainly not be required to use the men’s restroom (imagine any woman walking into a men’s restroom) or a different restroom than other women use. And, if you’re concerned about privacy in the restroom, remember that most people want more privacy and make sure you’ve taken steps to provide that for everyone.
A specific resource on restrooms is available here:
http://www.hrc.org/issues/restroom_access.htm
For more comprehensive guidance, see: http://www.hrc.org/issues/transgender_inclusion_workplace.htm
Thanks, again, for this discussion and the opportunity to comment.
Samir Luther
Human Rights Campaign Foundation