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Why Employers Should Consider Letting Transgendered Employees Use the Restroom of Their Own Choice – Part One

With a growing number of employees choosing to openly change their gender without changing their jobs, human resources departments are being enlisted to assist these employees in transitioning. This often involves unique challenges that may require many conversations and substantial planning. How will you go about changing the employee’s name? How will coworkers be notified, and will they require any special training? How will clients be informed? And of course, what restroom the employee will use after they transition?

As we have seen in recent weeks, state legislators in several southern states have been especially preoccupied with the issue of whether the transgendered should use public restrooms of their choice. As an employment lawyer, I would caution employers from getting drawn into this new battle in the culture wars. The first thing to bear in mind is that courts are increasingly taking the position that discrimination on the basis of transgender identity is “because of sex” and violates Title VII. While the right to choose a bathroom has not been specifically addressed in the context of Title VII, the Fourth Circuit’s holding earlier this week that a transgender male student was discriminated against because of his sex in violation of Title IX, when his high school prohibited him from using the bathroom of his choice, suggests that the same would apply in the context of Title VII. Moreover, employers who take an adverse position with respect to transgendered employees’ requests may inadvertently encourage other employees to engage in conduct that would support claims of hostile environment discrimination. The employer who treats the employees who are often stigmatized with respect sends a strong message that no type of discrimination will be tolerated in the workplace.

Legal liability issues aside, there are many good reasons why an employer might want to accommodate the transgendered employee’s request to use the restroom assigned to the gender which he or she identifies with. Younger “cisgendered” employees (i.e., those who identify with the gender that they were born with) are more likely to want to work for companies that have diverse workforces and progressive policies. They are not impressed by employers who only talk about diversity. They know that the employer that is transgender-friendly clearly means what they say on their website. Younger consumers are also more likely to shop from companies that value diversity. Many companies and municipalities (including the federal government) are now requiring their contractors to demonstrate that they have broad non-discrimination policies that include sexual orientation and gender identity. Finally, while some people may have difficulty with transgendered folks that they do not know, coworkers are often surprisingly supportive of a longtime colleague who decides to undergo a change, much as employees were supportive of gays and lesbians who came out during the last decade. If a transgendered employee was a great employee before they transitioned, they are likely to remain a great employee afterwards, especially if their employer has remained supportive through the process. In a future blog, we will talk about how employers can communicate about these issues with employees to create a workplace that accommodates a transgendered employee.

This information is provided by Vinson & Elkins LLP for educational and informational purposes only and is not intended, nor should it be construed, as legal advice.