Emerging Transgender Issues in the Workplace
Originally published in DBA Headnotes.
Caitlyn Jenner. Lia Thomas. Dylan Mulvaney. These are just some of the names that have contributed to the public’s increased awareness of and attention to transgenderism. As public awareness and attention have increased, it follows naturally that employers now more frequently address workplace issues involving transgender employees. Since the U.S. Supreme Court’s landmark decision in Bostock v. Clayton County, protecting LGBTQ+ employees under Title VII, the rights of transgender persons in the workplace have required HR departments to assess and prevent any potential transgender discrimination claims. Below are just a few of the emerging issues.
Access to Bathrooms
The ability of a person to use the restroom that aligns with their gender identity is currently among the higher profile debates in America. On the heels of the Bostock decision, the EEOC issued guidance stating: “Employers may not deny an employee equal access to a bathroom, locker room, or shower that corresponds to the employee’s gender identity. In other words, if an employer has separate bathrooms, locker rooms, or showers for men and women, all men (including transgender men) should be allowed to use the men’s facilities and all women (including transgender women) should be allowed to use the women’s facilities.”
However, the State of Texas filed suit challenging that guidance and, in October 2022, a court in the Northern District of Texas vacated the EEOC’s guidance on the basis that it went beyond what Title VII requires. Similarly, the 11th Circuit recently upheld a high school’s policy forbidding transgender students from using bathrooms that align with their chosen gender identities, and instead requiring students to use bathrooms corresponding to their biological sexes. The 7-4 split vote in that opinion was along party lines and reflected the politically-charged nature of this debate. OSHA also has delved into the bathroom issue by rendering a “best practices” guide for employers, with a stated “core principle” that “all employees, including transgender employees, should have access to restrooms that correspond to their gender identity.” OSHA’s guidance provides additional options and solutions for employers that have the means. Employers may want to consider increasing the number of smaller or single-user restrooms that are gender neutral and can be locked. Other solutions include placing all toilet facilities in stalls that can be locked. Both of these potential solutions can create privacy between bathroom users and other persons in nearby bathroom areas.
The use of a person’s preferred pronouns also has become a contentious issue in the workplace. Some employers, in an effort to create a more inclusive atmosphere, may encourage employees to share their preferred pronouns in the workplace, such as in email signatures. This can be a key element of an employer’s diversity and inclusion efforts.
Employers should prevent employees from harassing transgender employees by deliberately referring to them with pronouns that are opposite of their preferences. Because it has been observed that some employees will refuse to use other co-workers’ preferred pronouns, another solution that works well is simply to have employees user their co-workers’ names as opposed to particular pronouns.
The Fourth Circuit in Williams v. Kincaid recently addressed whether gender dysphoria is recognized as a disability under the Americans with Disabilities Act (ADA). The court held that gender dysphoria is a diagnosable condition that is narrower and separate from a “gender identity disorder not resulting from physical impairments,” which is expressly precluded from the ADA’s coverage. While the Williams case did not arise in an employment matter, the opinion does implicate issues that arise in the employment context. Thus, employers should carefully consider this opinion when presented with requests for leave for medical treatment for gender reassignment surgery. The Williams case also raises the potential that an employee’s request for accommodation on issues such as bathroom access may be implicated under the ADA. It is currently unclear how other federal circuits will treat this issue. Because transgender-focused laws are emerging and fluid, federal guidance is limited and the specific laws vary depending on the jurisdiction. Employers should stay educated on the various federal, state, and local laws and regulations within this evolving landscape. At the end of the day, every employer’s goal should be to create an inclusive environment that does not alienate one group or the other, and finding that happy medium will often pave the way to a more satisfying and productive work environment.