TRANSGENDER WORKPLACE ISSUES A CURRENT HOT TOPIC

For those of you that have been following the news, the State of North Carolina has received a fair amount of negative publicity after enacting legislation restricting the restrooms which can be used by transgender individuals. Today, the federal Department of Justice warned North Carolina that its “bathroom law” violated the civil rights of LGBT persons. Similar proposed legislation in Tennessee failed, and various other states are in the process of discussing this topic.

With all of this as a backdrop, on May 2, 2016, the EEOC issued a fact sheet entitled Bathroom Access Rights for Transgender Employees under Title VII of the Civil Rights Act of 1964.

Transgender issues have been a hot topic for the EEOC for several years now. In Macy v. Dep’t of Justice (April 12, 2012), the agency ruled for the first time that discrimination based upon transgender status is sex discrimination in violation of Title VII, the federal law prohibiting discrimination in the workplace.

On September 25, 2014, the EEOC filed two landmark cases alleging that employees have been terminated unlawfully because of their transgender status. As a side note, on April 7, 2016, one of those companies, R.G. Harris Funeral Homes, filed a motion for summary judgment seeking dismissal of the allegations. In that case, a funeral home director/embalmer was terminated several weeks after revealing that he was in the process of undergoing a gender transition, and that the employee would therefore begin wearing to work clothing consistent with her current gender identity as a woman. In its filing, the funeral home contended that there is nothing unlawful about requiring employees to wear gender-specific uniforms in the workplace; that professional decorum in the funeral home industry requires a dress code sensitive to customers during a very delicate time in their lives; and that the funeral home’s religious beliefs outweigh any desire by employees to wear a certain type of clothing. It remains to be seen how the federal courts in Michigan will rule on that case.

All of the above is a backdrop to the Fact Sheet issued by the EEOC on May 2. In that document, the EEOC stressed the following points with respect to providing bathroom access for transgender workers:

* Denying an employee equal access to a common restroom corresponding to the employee’s gender identity is sex discrimination;

* An employer cannot condition restroom access on the employee undergoing or providing proof of surgery or other medical procedure; and 

* An employer cannot avoid this requirement by restricting transgender employees to single-user restrooms (although the employer can make a single-user restroom available to all employees who choose to use it).

Also, the EEOC stressed that the mere fact that coworkers are confused or anxious about sharing a restroom with a transgender employee does not justify discrimination in the workplace. 

Frankly, issues involving transgender restroom access do not arise all that often at this time. However, we are beginning to see more and more issues relating to transgender status in the workplace, and it is clear that this is firmly on the radar screen of the EEOC. With that in mind, employers are well-advised to be prepared for these issues as they may arise in the future.

If you have questions about this Employment Law Alert or wish to discuss the impact of this decision upon your business, please do not hesitate to contact Maury Nicely at Evans Harrison Hackett PLLC, 423/648-7851 or mnicely@ehhlaw.com.