Reproduced with permission from Daily Labor Report, 109 DLR B-1 (June 8, 2015). Copyright 2015 by The Bureau of National Affairs, Inc. (800-372-1033) http://www.bna.com/
Private sector employers that don't respect a transgender worker's choice of restroom to use run the risk of claims and potential liability under Title VII of the 1964 Civil Rights Act, employment lawyers and advocates told Bloomberg BNA in a series of interviews.
They said the risk exists even though there's disagreement over whether federal courts will embrace the Equal Employment Opportunity Commission's April 1 decision in Lusardi v. McHugh, EEOC, No. 0120133395, 4/1/15, when interpreting the workplace rights of transgender private sector employees.
In Lusardi, a case involving a government employee, the EEOC held for the first time that a male-to-female transgender woman faced illegal sex discrimination under Title VII when she was told her use of a common women's restroom was making co-workers uncomfortable and to use a unisex bathroom instead.
Jill Gaulding of Gender Justice in Minneapolis told Bloomberg BNA May 29 that “the most important takeaway from Lusardi for employers is that you can never mandate a transgender employee's use of a segregated restroom.” Gaulding, whose organization is committed to breaking down gender barriers, said that “goes back to the notion of prohibiting workplace segregation.”
“It's not as if the EEOC went rogue” when it ruled that an employer discriminated against a transgender employee by telling her not to use a women's restroom, Mari Newman of Killmer, Lane & Newman said.
Lusardi ultimately may not carry much precedential weight with federal courts, but “the case should still serve as a wake-up call” for private-sector employers, Terri Gillespie of management firm Obermayer Rebmann Maxwell & Hippel LLP in Philadelphia told Bloomberg BNA May 29. Not handling transgender workers' restroom use correctly could lead to costly discrimination and retaliation claims, she said.
Title VII doesn't contain an express prohibition against discrimination based on gender identity, but the EEOC told Bloomberg BNA in a statement June 4 that its investigators will rely on Lusardi when making reasonable cause findings in the private sector and when pursuing private sector litigation in federal court.
As if to prove the point, the agency June 4 sued a Minnesota financial services company under Title VII on behalf of a transgender woman, challenging the employer's alleged companywide policy or practice of precluding transgender female employees from using the restroom consistent with their sex (EEOC v. Deluxe Fin. Servs., Inc., D. Minn., No. 0:15-cv-02646, complaint filed 6/4/15).
Employers Should Take ‘Compliance First' View
Rae Vann of Norris Tysse Lampley & Lakis in Washington told Bloomberg BNA June 5 that the Lusardi ruling and the EEOC's new lawsuit against Deluxe Financial Services Inc. should put private sector employers in a compliance mode.
Vann is general counsel for the Equal Employment Advisory Council. She said most of the EEAC's member companies take a “compliance first” approach to the issue of transgender workers' restroom use in light of the EEOC's activities and recent federal agency guidance on LGBT workplace rights. All employers would be wise to do the same until the federal courts weigh in on the EEOC's position, Vann said.
She said that's especially so because the Deluxe lawsuit falls within a national priority stated in the EEOC's 2013-2016 strategic enforcement plan calling for the agency to address emerging and developing employment discrimination issues through private sector enforcement.
Mark S. Kittaka of management firm Barnes & Thornburg in Fort Wayne, Ind., agreed. “You can debate whether” gender identity bias actually is covered under Title VII, but “we're advising clients” that for now they should be following the EEOC's position on the issue, he told Bloomberg BNA June 5.
Awareness Will Rise, If Not Claims
While predictions were mixed on whether Lusardi and other LGBT rights developments have or will lead to a spike in claims or lawsuits by private sector transgender workers, a 2011 study by UCLA School of Law's Williams Institute estimated there are approximately 700,000 transgender individuals living in the U.S., so the risk of increased liability for employers could be significant.
According to the Human Rights Campaign, an LGBT rights advocacy group, in six studies conducted between 1996 and 2006, 20 percent to 57 percent of transgender respondents said they experienced some form of employment discrimination.
Shannon Minter of the National Center for Lesbian Rights in San Francisco told Bloomberg BNA June 2 that, up until now, the denial of restroom rights “has probably been the most common problem” his organization “has been contacted about” by transgender workers.
But he said he hasn't seen an increase in complaints or claims since Lusardi was decided.
“I would hope just the opposite happens,” Minter said. He believes employers are starting to understand the issue and that ultimately Lusardi and other recent workplace developments regarding LGBT employees will continue to raise employer awareness and recognition of transgender workers' restroom rights.
Gaulding said her hope “isn't necessarily that we see a rise in the number of complaints, but that people who do come forward succeed with their claims.”
Gillespie, on the other hand, predicted that the Lusardi ruling and other developments will result in more internal job bias complaints, if not necessarily more EEOC charge filings or lawsuits.
The primary impact of Lusardi, she predicted, will be to make individuals more aware of their rights or potential rights under Title VII, which will bring the issue more to the fore and perhaps spur even more transgender workers to “come out” in the workplace.
EEOC Not Acting in Vacuum
Although a federal bill—the Employment Nondiscrimination Act—has been introduced in every Congress since 1994 and has thus far failed to pass, the EEOC's Lusardi ruling and the Deluxe Financial lawsuit didn't occur in a vacuum.
In 2012, the agency held in the federal worker context that bias based on gender identity is discrimination based on sex under Title VII (Macy v. Holder, EEOC, No. 0120120821, 4/20/12). It has also previously sued—and settled—private sector employers for sex discrimination claims brought on behalf of transgender workers under Title VII.
On the federal employment front, the EEOC, together with the Office of Special Counsel, the Merit Systems Protection Board and the Office of Personnel Management, June 3 issued joint guidance regarding LGBT discrimination protections for federal workers.
In addition, President Barack Obama, the Labor Department's Office of Federal Contract Compliance Programs and the Justice Department have all acted in the past year to broaden the workplace rights of LGBT workers.
On the specific issue of restroom use, Minter noted that the Lusardi ruling cites to Office of Personnel Management guidance providing that once transgender federal employees have begun working in the gender that reflects their gender identity, they should be permitted to use restrooms and locker room facilities consistent with their gender identity.
In addition, the DOL's Occupational Safety and Health Administration June 1 published best practices stating that transgender employees should be allowed to use restroom facilities that correspond with their gender identify.
The past few years have also seen a flurry of state and local legislative activity recognizing transgender status or gender identity as a protected category under civil rights law, with Utah in March becoming the 18th state to pass such a law.
Some of those laws have specifically addressed the restroom use issue, Minter said. He said the ones that have done so are consistent with the EEOC's position that transgender employee restroom use should be determined by the individual's own gender self-identification.
Plaintiffs' attorney Shirley Lin of Outten & Golden in New York echoed Minter's view that “the law is all headed in the same direction”—broader recognition of workplace rights for transgender individuals, including with regard to restroom use. She believes there will be changes in state laws that conflict with the EEOC's Lusardi decision, she told Bloomberg BNA May 28.
Will EEOC's View Prevail in Court?
Lin's statement begs the question of whether federal courts ultimately will embrace the EEOC's holding in Lusardi.
Plaintiffs' attorney Mari Newman of Killmer, Lane & Newman in Denver told Bloomberg BNA June 5 she believes Lusardi “is rooted in federal precedent.” The commission cited decisions from the U.S. Court of Appeals for the Fifth Circuit and the Ninth Circuit in support of its holding on the restroom use issue, so “it's not as if the EEOC went rogue,” she said.
Lin said the majority of federal circuits have recognized sex stereotyping as a form of sex bias under Title VII. “That laid the groundwork for” Lusardi, she said, adding that “the courts can put the pieces together and support the EEOC's holding.”
Gillespie, Kittaka and Vann each also mentioned the growing recognition of the sex stereotyping theory, which is derived from the U.S. Supreme Court's decision in Price Waterhouse v. Hopkins, 490 U.S. 228, 49 FEP Cases 954 (1989), as a reason why federal courts may embrace the Lusardi decision. In Price Waterhouse, the Supreme Court held for the first time that bias based on sexual stereotyping and failure to conform with gender norms can amount to sex discrimination under Title VII.
But Vann added that she's not so sure federal courts will fully adopt the EEOC's view in Lusardi.
“The courts haven't gone running” to embrace the EEOC's decision in Macy, she said, so it's not a given that they'll embrace the EEOC's position on transgender worker restroom use either.
She also noted that the Tenth Circuit in 2007 rejected a Title VII claim by a male-to-female transsexual public bus driver fired because of her managers' alleged concern about her use of women's public restrooms (Etsitty v. Utah Transit Auth., 502 F.3d 1215, 101 FEP Cases 1357 (10th Cir. 2007)).
What If Co-Workers Object?
The validity of the employer's argument in Lusardi that other workers were uncomfortable with the transgender employee's use of a common women's restroom prior to completing the transition process by having “final” gender reassignment surgery also elicited mixed views.
Lin said the law doesn't condition an individual's rights on the viewpoint of a co-worker, “particularly if it comes from a biased perspective.” Title VII doesn't contain a “heckler's veto,” she said.
But Vann said she doesn't think the surgery argument is unreasonable at all, as it can play a factor in the comfort level of other workers. In handling the transgender restroom use issue, she said, employers have to take care that they're “not trammeling the rights of other employees” in the process.
“At the end of the day, it's a matter of reasonableness and good faith” under the circumstances, Vann said, advising that employers should have a general policy in place, but should consider such situations on a case-by-case basis.
Gaulding, on the other hand, pointed to the Eighth Circuit's ruling in Cruzan v. Special School District, # 1, 294 F.3d 981, 89 FEP Cases 107 (8th Cir. 2002), which rejected the notion that allowing appropriate access to restroom facilities based on gender identity could constitute illegal harassment of objecting employees.
Attorneys Encourage Employers to Have Plan
Those interviewed by Bloomberg BNA agreed that it is to the advantage of all concerned if there is a plan in place for handling a transgender worker's “coming out” and transitioning in the workplace and that there's a real risk of workplace harassment if the situation's not handled properly.
The first step, they said, is a discussion between the employee and the employer regarding how and when to announce the worker's transgender status to colleagues, when the employee will be changing his or her appearance and name and, of course, the restroom issue. There is also a general consensus that the individual employee's gender self-identification should be at least a determining—if not the determinative—factor.
Let any co-workers who remain steadfast in their objection use a different restroom, if one is available, rather than forcing the transgender employee to do so, Gillespie advised.
Kittaka said an employer operating a workplace lacking a unisex restroom option might want to install one for those workers who have privacy concerns about sharing a restroom with a transitioning employee.
Employees and employers may mutually agree—as did the parties in Lusardi—to a plan under which a transitioning employee will use a single-occupancy restroom for a period of time. However, such agreements are, at best, only temporary and are ultimately unenforceable, Gaulding and Kittaka said, citing the EEOC’s holding in Lusardi that Title VII rights can’t be prospectively waived.
But it doesn’t serve anyone’s best interests to examine the issue closely and put a good policy in place “just to have the whole thing fall apart for lack of training,” Vann cautioned.
After identifying useful benchmarking resources, she said, “make sure all your folks are well-trained,” not just human resources personnel but any individual who might be the first to receive notice of a transgender worker’s needs.
Gillespie said whether any group training should be conducted with or without the transgender worker present should be determined by his/her preference. She or he might be helpful in answering co-workers’ questions or in allaying their concerns, she said.