As the fight over transgender rights centers on public restrooms, the issue has put pressure on human resource departments to head off potential trouble in the workplace.
Federal rulings and the Equal Employment Opportunity Commission (EEOC) have made strong statements that it is illegal to discriminate against employees of all government agencies and for all private employers with 15 or more employees due to sex and gender identity, according to the Transgender Law Center (PDF).
A transgender individual is a person who identifies with a gender that is different than the sex organs they were born with, the EEOC notes on its website. A person does not need to undergo any medical procedures to identify as transgender.
The EEOC also has made it clear that state law does not trump Title VII of the Civil Rights Act of 1964 when it comes to protecting transgender rights in the workplace. This means “an employer cannot avoid the requirement to provide equal access to a common restroom by restricting a transgender employee to a single-user restroom instead (though the employer can make a single-user restroom available to all employees who might choose to use it),” the EEOC notes.
This places a huge responsibility on human resource departments to stay on top of the latest transgender trends and what it could mean for the work place. “This is about much more than bathrooms,” Bruce Clarke, CEO of Capital Associated Industries, a non-profit employers’ association serving North Carolina, writes in The News & Observer.
Clarke’s state became the center of controversy after its governor signed a law requiring people to use public restrooms based on their sex from birth, as opposed to the gender they identify with. This was in defiance of the federal government, resulting in North Carolina and the U.S. Attorney General’s office suing each other.
“Business leaders have some choices to make,” Clarke says. “Courts usually defer to the EEOC’s view, but not always.”
With a pending California public bathroom law and pending state sexual orientation and gender identity nondiscrimination bills, the focus on transgender rights won’t go away soon, writes Katie Triska, a shareholder in the Reinhart Labor Employment practice. Employers should take the EEOC’s strong stance for protecting transgender rights seriously regardless of what laws states like North Carolina adopt, she notes.
“The anxiety, confusion, discomfort and prejudices of employees, supervisors, customers or anyone else in the workplace does not justify discriminatory treatment of transgender employees,” she writes. To avoid trouble, employers need to allow transgender employees to use the restroom that conforms with their gender identity, not require specific gender-related dress and appearance policies, refer to employees by their preferred names and pronouns and make sure nondiscrimination policies are updated, Triska notes.
Nineteen states and the District of Columbia provide gender-identity protections, while 22 states and DC provide sexual-orientation protections, Michelle Phillips, principal at Jackson Lewis law firm said in Human Resource Executive Online.
One top concern for employees--feeling safe about sharing the bathroom with transgender co-workers--is not warranted, says Phillips, who trains and counsels employers on transgender issue. Many human resource professionals struggle with finding a balance that satisfies all employees.
They are “concerned that they won’t say the right thing, offend someone or not [properly] deal with staff complaints,” Phillips says. “Don’t panic. If you treat it like any other accommodation issue, the answers will become clear.”
Laura MacLeod, founder of From the Inside Out Project, a national employee-relations consulting firm, urges HR to not be dismissive of employees who object to transgender accommodations. “Empathize with people about their religious views and fears,” she says. “Hear it, respond to it, pick it apart, offer facts and history.”
A possible solution, other than installing unisex restrooms, is having longer stall doors and covering openings between stall walls to address privacy concerns, says Stacy Hickox, an associate professor in the school of HR and labor relations at Michigan State University. Getting ideas from transgender employees on ways to make them and other co-workers comfortable also could lead to an amicable solution for all.