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No doubt you've heard the name Caitlyn Jenner mentioned a few times around your office this week. Some label Bruce Jenner's transition as courageous while others label it disturbing. Either way, when employees decide to make a gender transition, it can create employee relations issues for employers. Is there a best way to handle this situation?
Well first let's look at what the government says. The Equal Employment Opportunity Commission (EEOC) found on April 1, 2015 that restricting a transgender employee (transitioning from male to female) from using the common women’s restroom was sex discrimination under Title VII. The agency also ruled that the continued refusal by one of her supervisors to use her changed name and appropriate gender pronouns established a hostile work environment because it was deliberate and openly practiced in the workplace.
The individual, a civilian employee working for the US Army as a software quality assurance lead, began discussing her gender identity issues with the quality division chief in 2007, began the process of transitioning her gender expression in 2010, and officially changed her name with the state. She was also successful in getting the government to change her name and sex on all her personnel records. She met with her supervisor and his supervisor in October of that year to request time off for medical procedures and announced her transition to her co-employees in November. To read this case in its entirety, go to Lusardi v McHugh.
One of the first dilemmas employers face in these transitioning processes is which restroom does the person use? In this particular case, it was understood that the individual would use a “single-user” restroom until she had undergone “final surgery”. The EEOC stated that an employer cannot restrict access to facilities until surgery was completed determining the individual’s sexual identity.
Another issue in this case dealt with the use of male gender pronouns. The employee claimed that her supervisor intentionally referred to her by her former male name and used male pronouns when referring to her in front of other employees (this was corroborated by witness testimony during the agency’s investigation). The EEOC found that continued refusal to use an employee’s correct name and gender may be sex-based harassment and create a hostile work environment.
While is it understandable that a supervisor persistently calling the individual by her former male name and using male pronouns when referring to her in front of her peers creates a hostile work environment, it is disappointing that the EEOC did not thoroughly consider the major employee relations issues generated by a male transitioning to a female using female restrooms. This could create issues not only with the female employees, but also with the female employees’ spouses and or their significant others.
OSHA has also recently put out guidance for employers on accommodating transgender employees restroom preferences. That guidance is attached to this article. OSHA's core principle is that all employees, including transgender employees, should have access to restrooms that correspond to their gender identity.
We frequently receive calls from members about the restroom issue. What should you do? First, we believe it's important to keep an open dialogue with the transitioning employee. If available and reasonably accessible, single-occupancy or unisex facilities can serve as a temporary facility for transitioning employees during the transition process, but should not be a permanent solution. If you don't have such facilities, discuss the sensitive nature of the situation with the transitioning employee. Suggest that restroom breaks be taken at low traffic times to reduce awkward moments, adding that the transition affects not only the individual going through the process but all other employees of the person's desired gender. If none of these options will work, you might also consider requiring the transitioning employee to use the bathroom that matches their biology. Of course, as noted earlier, the EEOC doesn't support this option, and it does pose other risks, but sometimes you have to do what's in the best interests of all employees and not just one. Especially if you are faced with an employee relations problem with a large group of female employees (and their spouses), or vice versa, who don't want to use the restroom alongside this transitioning employee.
If you land in this situation, give me a call and I'll be glad to help you think through what course of action makes sense for your organization. Also, I'd love to know how you've dealt with this situation. Feel free to comment below.