United States: Accommodating Transgender Employees Is Not A Theoretical Option

In September, our firm gave presentations throughout Texas discussing office policies that could stretch into employees' non-office activities ( click here for presentation).  Interwoven throughout discussions of tattoos, piercings, dress and appearance guidelines was the issue of how to fairly treat transgender employees.  Employers often continue to promote policies that no longer compliment cultural norms or expectations, without having any legitimate reason for maintaining them.  Such policies, particularly relating to dress, appearance and facilities use, can disproportionately affect transgender employees and possibly lead to legal issues.

For many years, these discussions have been primarily academic, or held only by those employers wanting to embrace a more progressive workplace culture, since there were very few credible legal threats to actually defend.  After all, transgender status was not considered a protected class and, for the most part, transgender employees seemed to be few and far between.  Times have changed, however, and all employers should be having such discussions and making any changes necessary to catch up with the cultural and legal landscape.

Savvy employers have known for several years that they must insure a workplace free of transgender discrimination, even in the absence of specific laws to that effect.  Traditional gender discrimination laws via Title VII and state law equivalents have been used to support transgender employees' private discrimination claims, usually based on the simple premise that employers treat transgender employees differently on the basis of their gender because they fail to act or appear as a man or a woman "should."  It's easy to see how an outdated dress code requiring the existence (or absence) of certain clothing, hairstyles, or makeup application for women but not men (or vice versa) is ripe fodder for such discrimination.  This did, in fact, form the basis of two historic lawsuits that the EEOC filed in September against two different employers.  In each case, the transgender employee was confronting workplace attire issues.  The EEOC filed claims under Title VII because the respective employers took adverse actions against employees who did not conform "to the employer's gender-based expectations."

The answer for employers is simple, though not necessarily easy to accept.  For each dress code/appearance policy you maintain, ask yourself why your business requires it.  Imagine yourself standing in front of a judge, jury or the EEOC commissioner and explaining why, for example, your company mandates "short, neatly-trimmed" hairstyles for men and forbids them from wearing skirts, but has no problem with long-haired, bare-legged women.  See if you can come up with a legitimate business reason for the distinction.  Most likely, your justifications would tend towards the "industry expectation" or "company culture" areas, both of which offer little legal protection.  Dress/appearance policies based upon worker safety, hygiene and a very basic level of professionalism that applies to both genders are likely to be defendable, but everything else is open to attack.

The murkier issue, though, is whether employers must allow transgender employees to use restroom facilities based upon the employee's preference, with the usual example being an employee who is either biologically male-gender but transitioning to a female gender or who identifies as a female, wanting to use facilities reserved for female employees.  One could argue that this issue should not pose a legal quandary, since Title VII sex discrimination claims do not traditionally encompass requests for special accommodations, like religion and disability-based claims.  But, the argument could still be that the employer is treating the transgender employee differently (restricting facilities use) because of gender.  Or, the employee may raise a harassment-based claim, similar to the claim recently before the U.S. Office of Special Counsel (OSC).  Therein, the civilian male to female transitioning employee claimed harassment by the U.S. Department of the Army when she was repeatedly called male pronouns and her former, traditionally-male name and restricted from using the women's bathroom at work because she made other employees uncomfortable. The OSC determined that this conduct was sufficiently pervasive to constitute discriminatory harassment.

The easy remedy of providing a single-stall unisex facility is not so easy if floorplan logistics and costs get in the way.  It is more likely that everyone's expectations for existing facilities will have to change.  Again, ask yourself "why is this a problem?"  See if your answer is based on actual, known concerns or theoretical fears.  For example, one response might be that several employees should not have to suffer a loss of privacy or concerns for their safety just to accommodate a single transgender employee.  But, someone's concurrent use of a facility for its intended purpose would not, alone, create such situations.  These situations occur through conduct that can be committed by anyone, transgender or not, peeking into stalls, exposing themselves or assaulting another in the facility.  To forbid transgender employees from using certain facilities because they may pose a higher risk of possibly committing such acts is, in fact, discriminating against them.  If employers want to address this "restroom" issue, they and their employees will simply have to critically examine their traditional expectations of who "should" use which facility, evaluate whether problems actually, or just theoretically, exist in this situation and consider whether the "problems" are really even problems at all.

Remember, while the legal landscape is still playing catch up to evolving cultural norms, "gender-based expectations" should never be a part of your workplace.  Instead, expectations should focus on how an employee performs the job, which includes contributing to a positive and productive workplace environment.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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