by Kylie Crawford TenBrook
Bruce Jenner, Olympic decathlon gold medalist and unfortunate/unwitting participant in Keeping Up with the Kardashians, recently transitioned from living as a man to living as a woman. For a fleeting moment, Caitlyn Jenner was even more famous than her stepdaughter, Kim Kardashian (and is, truthfully, giving her a run for her money in the looks department).
The response to Ms. Jenner’s transition demonstrated the best and the worst in people. However, Ms. Jenner’s transition started some important conversations and brought gender identity issues to the forefront.
At some point in the future, every employer will face issues surrounding gender identity. The most obvious one involves the use of restrooms and whether employers can require an employee to use the restroom associated with the employee’s sex rather than the gender with which the employee identifies.
Feds ‘flush’ out the details
Two federal agencies have recently taken action regarding transgender employees’ restroom access. For decades, the Occupational Safety and Health Administration (OSHA) has required employers to provide sanitary and available restrooms for employees. On June 1, OSHA issued guidance regarding transgender employees’ access to workplace restrooms. The guidance provides that employers should allow all employees to access the restroom that corresponds to their gender identity. That is, “a person who identifies as a man should be permitted to use the men’s restrooms, and a person who identifies as a woman should be permitted to use women’s restrooms.”
On June 4, the Equal Employment Opportunity Commission (EEOC) filed a lawsuit against a Minnesota employer alleging the employer engaged in sex discrimination by prohibiting a transgender employee from using the women’s restroom. The complaint also alleges that the woman was subjected to a hostile work environment because the employer allowed other employees to address her as a man. This follows a recent $150,000 settlement of another lawsuit filed by the EEOC. In that case, the agency alleged that a transgender woman was fired because of her transition from a man to a woman.
Please note that some states, including Colorado, Delaware, Iowa, Vermont, and Washington as well as the District of Columbia, have passed laws regarding transgender individuals’ access to restrooms. Although other states have not yet passed such a law, in light of recent federal agency actions, employers should be prepared to address transgender employee restroom access issues and know how they will respond before a situation arises.
How not to get caught pants-down
Given the recent developments, here are some do’s and don’ts to consider:
- Ensure all employees have easy access to sanitary restroom facilities.
- Allow employees to access the restroom that corresponds with their gender identity.
- Consider providing single-occupancy unisex facilities. (Please note, however, that if separate-sex facilities are required, employees should still be permitted to access the restroom that corresponds with their gender identity.)
- Require medical or legal documentation to substantiate an employee’s use of a certain restroom.
- Provide segregated restrooms based on employees’ gender identity or transgender status.
- Allow third parties’ preferences to guide your decisions on gender identity issues. As with discrimination on any basis, employees’ and customers’ stereotypes are not legitimate reasons to discriminate against anyone.
On Monday, Defense Secretary Ash Carter announced a plan that could lead to lifting the ban on transgender people serving in the military, stating in a memo, “The Defense Department’s current regulations regarding transgender service members are outdated and are causing uncertainty that distracts commanders from our core missions. . . we have transgender soldiers, sailors, airmen, and Marines—real, patriotic Americans—who I know are being hurt by an outdated, confusing, inconsistent approach that’s contrary to our value of service and individual merit.”
Ash touched on an very important point—outdated policies can be very hurtful to people experiencing an already-difficult transition. So aside from possible legal implications, it’s a good idea to be proactive and have a policy and plan in place that shows your employees that you want to provide a safe, nondiscriminatory place for them to work.
Kylie Crawford TenBrook serves as corporate counsel for Best Western International, Inc., in Arizona. Previously, she practiced labor and employment law exclusively. In her spare time, she enjoys reading about the misdeeds of celebrities, politicians, and professional athletes and making the tenuous connection between those missteps and what she does for a living.