Navigating Transgender Bathroom Statutes

September 27, 2016

Whether on a company, in school, or at the state level, people are trying to navigate transgender bathroom laws. On October 18 employment law experts Shelby Skeabeck of Shawe Rosenthal LLP and Michael Vogelsang of the Employment Law Group, P.C. will discuss this hot-button issue at the D.C. Bar Continuing Legal Education Program's annual "Changing Currents in Employment Law" course.

Skeabeck sat down with the D.C. Bar to give us a preview of this popular course and explore the challenges facing employers.

Tell us about your background and practice.

Shelby SkeabeckI am a management-side labor and employment attorney. [At] Shawe Rosenthal . . . [w]e represent employers in various labor and employment-related issues both in court and in front of administrative agencies, including the EEOC, DOL, and NLRB.

What should attendees expect your panel will cover at this year's "Changing Currents?"

My co-panelist and I will be discussing how transgender rights in the workplace have changed in the last few years and how that is playing out with these so-called "bathroom laws" in states like North Carolina. Several states and local jurisdictions have passed laws making discrimination against transgender individuals unlawful, while the federal law remains essentially unchanged.Several administrative agencies (OSHA, EEOC, OFCCP, DOJ, and the Department of Education), though, have taken the stance that individuals should be able to use the bathroom with which they identify.

Why is this area of law important and timely?

Cultural awareness of transgender persons and transgender rights is growing rapidly; however, this awareness and interest is not synonymous with approval. The matter of transgender rights has become something of a flashpoint because the heart of the issue breaks down to civil rights versus privacy rights. This cultural awareness has evolved into a political awareness as well. In the last two years, the Obama administration made transgender rights part of its agenda, as demonstrated by various agencies taking stances on this issue. The state of North Carolina has also made transgender rights a major political issue, but has taken a very different approach.

A discussion on this area of law is also extremely timely because of the North Carolina law that has gained a lot of media attention in recent months. This law and others like it have coincided with—and possibly come about partly as a reaction to—the more prominent role for transgender people in American popular culture. We see more transgender people on television and on the covers of magazines, even while other celebrities lend their names to transgender causes, as has happened with numerous event cancellations and other cultural protests in North Carolina. Americans are heated about this issue, which means the time is right to discuss the legal import it carries.

Have you seen an increase in the number of clients asking for advice regarding transgender issues in the work place?

Absolutely. This is still a relatively new and sometimes unsettled area of law, so we have received several questions from clients on how to handle employees who are transitioning. We often provide advice on this issue and are working to ensure that employers know the state of the law as it changes as well. In particular, we find ourselves providing more and more education about the transitioning process as many employers have no familiarity with that process.

If an employer has a transgender employee, does the employer have an affirmative obligation to provide or discuss accommodations, or is the employer's responsibilities contingent upon the employee asking for accommodations?

When we talk about accommodations, we usually think of the ADA and accommodations for individuals with disabilities, which requires the employer to affirmatively engage in the interactive process and provide reasonable accommodations. Accommodations are not required for transgender individuals, though, simply because an individual is transgender or is transitioning. Indeed, transgender persons would likely take issue with the idea that they inherently suffer from a disability.

However, that does not mean that a transgender individual may not be a qualified individual with a disability, and as such, may need accommodations under the ADA. If that is the case, then like any other qualified individual with a disability, employers may have accommodation obligations for transgender employees.

And while Title VII and similar state and local laws that prohibit discrimination as to the terms and conditions of employment may not obligate an employer to provide accommodations, I often counsel my client that it behooves employers to get out in front of issues like this rather than wait for them to bubble up in the form of employee complaints.

What rights, if any, does an employee who may be uncomfortable with his or her transgender coworker using a particular bathroom have?

Courts vary significantly by jurisdiction on this. The EEOC and some other courts reject the idea that employee discomfort with another employee's presence in the bathroom is sufficient reason to deny access. On the other hand, some federal courts have determined that coworker or customer discomfort can form a legitimate non-discriminatory basis for denying a transgender employee access to a particular restroom. As practical guidance, if another employee is uncomfortable, an employer can always designate a single stall as gender-neutral and allow the uncomfortable employee to use that bathroom.

What is one thing you would like to clarify about the current state of the law as it relates to transgender or LGBT protections?

Currently, there is no federal law that expressly provides protections for gender identity and transgender individuals in the employment context. However, several of the administrative agencies on the federal level have interpreted federal laws, like Title VII, to include protections for transgender individuals. We find that our clients seldom wish to challenge the EEOC's interpretation on this matter. Some courts have held very clearly that discrimination against someone because of their status as a transgender person is in fact discrimination based on sex in violation of Title VII.

What are the challenges in representing the employer in regards to transgender employees using the restroom?

Employer concerns include:

  • Allowing a transgender person to use the restroom that they identify with will cause problems with other employees
  • Other employees feeling uncomfortable with a transitioning, or transitioned, employee using the restroom with which they identify
  • Harassment complaints, whether it be from a coworker claiming that the transgender employee is creating a hostile work environment or from the transgender employee him- or herself feeling harassed by others.

The employer can only take complaints as they come and investigate them thoroughly. For this reason, we tell employers to have strong written policies on anti-harassment and make sure that there are several reporting channels to address any complaints that are raised. In addition, it can be a steep learning curve for employers to understand the transition process;we often find ourselves educating our clients about these things because they weren't as prevalent even two years ago.

What are some best practices that employers can implement?

We always recommend talking with the transitioning employee about [the employee's] transition and work[ing] together to institute a transition agreement or transition guidelines (which should be flexible) to aid the employer and transitioning employee in being on the same page about how the transition will unfold. The transition agreement/guidelines should address at least the following:

  • Dates for when names will be changed
  • Discussion of bathroom usage
  • When (if applicable) a broader communication about the transition will occur, such as changing pronouns
  • How and if the issue will be addressed more broadly with other employees.

What advice would you give to transgender employees who want to discuss their status with their employers?

From a practical standpoint, the transitioning employee will know significantly more about gender identity and transitions than their employer or HR representative. For this reason, the greatest pieces of practical advice I would give to a transitioning employee are:

  • Be open and willing to communicate with your employer
  • Be patient, as the employer likely has a steep learning curve in this area
  • HR can be a great resource.

We've found that employers are more than willing to work with transitioning employees throughout the transition process, but the employee has to be an active player in that dialogue. The employer can actually assist the employee (in the workplace, at least) by creating transition guidelines to effectuate a smooth transition and by ensuring that any necessary communication regarding the transition is done in a respectful and appropriate manner.

In addition to the panel on LGBT discrimination and "bathroom" statutes, "Changing Currents" will delve into the new overtime rules in the Fair Labor Standards Act, litigating a failure-to-hire case, whistleblowers and qui tam litigation, and the Family Medical Leave Act and paid leave statutes.

The course takes place from 6 to 9:15 p.m. at the D.C. Bar Conference Center, 1101 K Street NW, first floor. Register today!