By: Melanie M. Dunajeski, Drewry Simmons Vornehm, LLP
Employers face far more than the bathroom issues that are grabbing the headlines as American society circles the next big “inclusion” issue. Gender identity and transgender rights are seizing the nation’s attention as gay marriage did only a few years ago, with strongly held opinions on all of the many sides of these issues. Regardless of personally held beliefs and opinions, however, employers need to prepare to face these issues to ensure a compliant and discrimination-free workplace for all employees.
It is no secret that the U.S. Equal Employment Opportunity Commission (“EEOC”) has placed transgender issues high on its priorities as part of its 2012-2016 Strategic Enforcement Plan. While many argue that the bounds of Title VII of the Civil Rights Act of 1964, as amended, do not apply to issues of sexual orientation, including transgender issues, the EEOC has aggressively advanced its agenda based on its interpretation that Title VII covers discrimination against gay, lesbian, bisexual and transgendered individuals as discrimination “on the basis of sex”. Likewise, the U.S Department of Justice has indicated a willingness to support transgender issues through the civil rights lawsuit it has filed against the recently enacted North Carolina “Bathroom Bill”. Just as with gay and lesbian issues, we can expect the EEOC to identify and advance test cases to bring these issues to the U.S. Supreme Court. Do you want to be that employer? Probably not- so in anticipation of this enforcement environment, employers to should take preventative steps now.
What do your policies and procedures say? You probably have a non-discrimination policy, but the time is ripe to update that policy to include non-discrimination and anti-harassment provisions that refer to gender identity and expression of gender identity. Do you have a dress-code policy? It may be time to update that policy to a gender neutral policy. If you have any kind of bathroom, dressing room or locker room issue, you should probably consult with an employment attorney before any enforcement issues arise. In the interim, OSHA has issued a Guidance on restroom access for transgendered employees stating that employers should permit employees to use the restroom that corresponds to their chosen gender identity, or in the alternative to offer a single-occupancy unisex restroom. Do you train your supervisors on non-discrimination issues (you should)? It is time to add transgender and other sexual orientation issues to the mix, including using a transgendered employees’ new name and gender specific pronoun. Employer recordkeeping is also at issue, including when an employer is obligated to revise employee records to reflect changes in gender.
This year has been a very active year in a number of areas of employment law, so a full review of your policies and procedures can incorporate these needed changes as well as bringing you up to date with the other issues. Contact us to discuss bringing your policies and procedures up to date. We also understand that issues of employee sexual orientation may create unusual or unforeseen problems within the workplace—contact us to help you work out a non-discriminatory solution to these issues as they arise.