Thursday, August 25, 2016 – Rebecca Kellner, JD, SPHR
The first question employers tend to ask in situations like the one outlined above is: “Which bathroom should this individual use?” According to the Equal Employment Opportunity Commission (EEOC) in this fact sheet, you should let Jan use the restroom that corresponds with her identified-sex — so in this case, the women’s restroom. The Occupational Safety and Health Administration (OSHA) agrees.
But what about the fact that Jan still has “Stan” body parts — shouldn’t we wait until after the surgery to have Jan use the women’s restroom? No. Doing so could invite further probing by the EEOC or OSHA (see links above) and possible repercussions.
Okay, but I know several employees are going to be uncomfortable with the idea of a man in the women’s restroom. Can I ask Jan to use the one single-occupancy bathroom we have in the office for visitors? Well, you can — but recognize this is contrary to the guidance the EEOC and OSHA have put forth, so this request could result in possible discrimination complaints. Furthermore, what message does this send to Jan? “Yes, we’re fine with your transition and we think you are a great employee, but if you wouldn’t mind going to the bathroom over there because we really don’t think it’ll be received well if you use either the women’s or men’s restrooms, that’d be great.” Unless Jan doesn’t pick up on social cues, undoubtedly she’s going to feel like a second-class citizen being forced to use a segregated bathroom. That doesn’t bode well for your reputation as an inclusive employer of choice.
As an employer of choice, this is the question you should be most worried about — “How do I ensure others remain respectful and inclusive of Jan and not let her reassignment cloud their judgment of her as a person?” All employers should be asking themselves how they can ensure discrimination or harassment do not occur, which could in turn result in liability to the company.
While Title VII of the Civil Rights Act, as of today, does not specifically list sexual orientation or gender identity as protected classes, the EEOC interprets the prohibition on sex discrimination to include prohibitions on discrimination based on gender identity and sexual orientation. Furthermore, many states’ equal employment opportunity laws protect these classifications of individuals. The EEOC has provided some examples of incidents that would result in unlawful sex discrimination:
- Firing an employee because he is planning or has made a gender transition
- Denying an employee equal access to a common restroom corresponding to the employee’s gender identity
- Harassing an employee because of a gender transition, such as intentionally and persistently failing to use the name and gender pronoun that correspond to the gender identity with which the employee identifies
These three examples come from actual cases in which the EEOC filed suit against employers based on similar facts. The employers in these examples were subject to conciliation agreements paying $115,000 (first example) and a court decision resulting in compensatory damages and attorneys’ fees (second and third example) — hard and expensive lessons.
So, what can I do? I can’t monitor my employees 24/7 or change their opinions. No, but you can demand that all employees respect and work together. You have an obligation to investigate claims of unlawful harassment or discrimination, even if those claims come to your attention second-hand or by way of rumor. See our prior article for some helpful investigation tips.
- What do we tell other employees? Ask Jan if and how she wants to communicate to others about this transition. Jan is likely undergoing lots of anxiety about how others will perceive this transition and wants to make it as easy as possible. Several of our clients have had success in co-drafting communications with the transgender employees to send out to the department, division or entire workforce depending on the work relationships.
- Do our benefits cover Jan’s treatment and/or surgery? Interesting question. My colleague Sarah Fowles will tackle that in a future blog post.
- What name do we use in our systems? Oftentimes, the person’s legal name will not change right away. You’ll need to use the legal name for payroll purposes, since taxes must be filed under a person’s legal name. But for other systems that don’t need the use of the legal, like your email addresses for example, or the company directory, ask the employee when he or she would like those changed.
Have more questions? Need help with refresher harassment training? We can help. Contact us.Share