Because a number of you asked that next year’s conference cover legal issues related to transgender workers, we decided to take a look at the latest guidance.  It is estimated that 700,000 adults in the United States are transgender, according to a study conducted by the Williams Institute at the University of California-Los Angeles.

The EEOC takes the position that discrimination against an individual because that person is transgender is a violation of Title VII’s prohibition of sex discrimination in employment. Therefore, the EEOC will accept and investigate charges from individuals who believe they have been discriminated against because of transgender status (or because of gender identity or a gender transition).

The EEOC enforces laws prohibiting discrimination based on race, color, sex, religion, national origin, age, disability, and genetic information, as well as retaliation for protected activity. Although Title VII of the Civil Rights Act of 1964 does not explicitly include sexual orientation or gender identity, the EEOC and courts have said that sex discrimination includes this type of discrimination because an applicant or employee does not conform to traditional gender stereotypes.

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For example, it is illegal for an employer to deny employment opportunities or permit harassment because:

  1. A woman does not dress or talk in a feminine manner.
  2. A man dresses in an effeminate manner or enjoys a pastime (like crocheting) that is associated with women.
  3. A female employee dates women instead of men.
  4. A male employee plans to marry a man.
  5. An employee transitions from female to male or male to female.

Gender Stereotyping LGBT Brochure

The Occupation Safety & Health Administration recently put out a Best Practices Guide to Restroom Access for Transgender Workers.   The guidance was written to promote OSHA’s goal of providing a safe and healthy working environment for all employees.  OSHA sees this as a safety issue – to prevent against workplace violence, harassment, intimidation and other disruptive behavior, as well as ensure a healthy workplace environment.  OSHA generally requires employers to provide prompt access to appropriate sanitary toilet facilities. Under OSHA standards, employers may not impose unreasonable restrictions on employee use of toilet facilities.  For transgender employees, the bottom line is this:

All employees, including transgender employees, should have access to restrooms that correspond to their gender identity.

How is this accomplished? 

According to OSHA, 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 allowed to use the women’s restrooms.  The employee should determine the most appropriate and safest option.   Additional options may be provided, such as (1) single-occupancy gender-neutral (unisex facilities); and (2) use of multiple-occupant, gender-neutral restroom facilities with lockable single occupant stalls.

Can employers ask for medical proof of gender?

Under the OSHA Best Practices statement and recent court rulings, it would not be advisable to ask for any medical or legal documentation of gender identity in order to have access to gender-appropriate facilities.  In addition, employers should not require proof of medical transition procedures before recognizing gender identity.  A Nevada federal court, in fact, recently held that a school district was not entitled to medical records or other proof of gender from a transgender male employee to permit his use of the men’s restroom.  Roberts v. Clark County School District, __ F.R.D. __, 2016 WL 123320 (D. Nev. 2016).  To meet OSHA requirements, transgender employees should not be required to use segregated facilities or travel an unreasonable distance to a restroom, either.

OSHA and the EEOC can enforce their antidiscrimination standards.

The EEOC and OSHA can enforce antidiscrimination standards against employers.  In April of 2015, the EEOC issued the decision Lusardi v. McHugh, EEOC, No. 0120133395 (April 1, 2015), in which it found a Title VII violation when a female transgender employee was required by her employer to use a unisex bathroom instead of the common women’s restroom.  The EEOC’s order required the employer to take corrective measures, which included among other things allowing the employee “equal and full access to common female facilities,” requiring training to employees, and the imposition of disciplinary action against the employee’s supervisors.  It also granted the employee attorney’s fees.

The law on transgender employees is quickly evolving.  The EEOC offers updated guidance on its website.  However, districts should contact legal counsel when transgender issues arise to avoid costly legal action and unfavorable public attention.

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