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Gender Transition in the Workplace: Navigating the Restroom Situation

By: Amy Kullik

June 27, 2018

Cleveland, OH

Over the last few years, the most frequent question we’ve been asked relating to transgender issues in the workplace relates to which bathroom, or which locker room, should a transgender employee use. We propose that the bigger question should be “What are the best practices?” when addressing transgender employees in the workplace.

Let’s start with the numbers. A Gallup poll found that 4.1% of Americans identify as members of the LGBT community, and these numbers continue to grow. Federal, state and local laws are changing to provide workplace protections. LGBT discrimination charges with the EEOC have steadily increased, reflecting that LGBT employees are learning about their rights and protections.

What about Ohio? While Ohio laws do not explicitly identify protections for sexual orientation and gender identity in the workplace, many local communities have enacted ordinances to protect those groups, including Cleveland, Akron and Olmsted Falls. Courts are catching up as well. Recently, in EEOC v. R.G. & G.R. Harris Funeral Homes, Inc., the 6th Circuit affirmed that transgender individuals are protected by federal sex discrimination laws, and that religious belief does not give employers the right to discriminate against them. In that case, Aimee Stephens, a funeral director, notified the funeral home owner that she was transitioning from male to female and would soon start to present as a woman.  She was fired two weeks later, after being told that what she was proposing to do was unacceptable. The EEOC, on her behalf, filed suit under Title VII.  The district court refused to recognize “transgender” as a protected status, but allowed the suit to proceed on the unlawfulness of stereotyping under Title VII. The 6th Circuit reversed and remanded, and the funeral home has received an extension until August 3, 2018 to file its petition for appeal before the U.S. Supreme Court.

So what about the bathroom? The EEOC has issued a position statement on the bathroom question, agreeing that the transgender employee should use the restroom of the gender with which the employee identifies. OSHA offers two best practices: (1) single-occupancy gender-neutral (unisex) facilities, and (2) use of multiple-occupant, gender-neutral restroom facilities with lockable single-occupant stalls.

And what should employers do when an employee transitions? Be proactive in developing a workplace transition plan, and work with the transitioning employee to develop an individual plan that sets forth expectations in the process regarding the details of when the transition will occur, what type of communication take place, medical leave issues (if any), and what new name and/or pronouns are to be used. Strong messaging from management in support of the transitioning employee is important.

LNA members are not affiliated in the joint practice of law; each member firm is an independent law firm and renders professional services on an individual and separate basis.