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

I will not weigh into the most recent legal salvo in the transgendered bathroom wars other than to mention in passing that the federal government and the State of North Carolina filed dueling lawsuits challenging and defending North Carolina’s new law requiring public agencies to limit the use of multiple occupancy bathrooms to persons of the same biological sex. Instead, as I promised in my last blog on this subject, I will address how employers can accommodate transgendered employees without creating unnecessary battles with those employees who might have difficulty accepting these coworkers—especially when they use the restroom.

Restroom Sign

Discuss the employee’s thoughts on the transition. In my experience, most transgendered employees are not looking for a fight, much less an excuse for litigation. Those who choose to “come out” in their jobs as transgendered are often frightened and worried about how their employer and coworkers may react to their announced decision to transition. Most are unsure as to how they will handle the transition and will probably welcome any discussion with you about the best way to proceed. Therefore, when first approached by a transgendered employee who wants to transition, talk to them about how they envision the transition. Since these transitions are usually gradual, it is important to discuss a timeframe and to allow time for planning and for colleagues to adjust. While listening is important in these conversations, most employees will welcome your feedback. My only caveat is that if an employee chooses to talk to you about this issue, confidentiality should be a primary concern, and you should make sure that you get the employee’s consent before making any disclosures to coworkers or clients. An email confirming this might be prudent.

Talk logistics. In discussing the plan for transitioning, make sure you address logistics such as restroom use and any name change. While the EEOC and courts are likely to take the position that a transgendered employee should be able to use any restroom that is assigned to the gender of their choice, depending on the location and the design of the restrooms, the employee may agree that it is best to use some facilities—at least initially—instead of others, so long as the restroom(s) are convenient and likely to preserve the employee’s dignity.

Involve the employee in workplace communication. The employee and the company should also discuss a communication plan, which may require an assessment as to how coworkers are likely to react. How much you tell specific employees depends on the level of contact employees have with the transitioning employee. The employee should be given the option to personally inform coworkers, although in many cases, the transitioning employee may prefer that the employer handle this communication. Regardless of who handles the initial communications, it is important that the company convey the message that the company will expect employees to treat the transgendered employee with respect and not discriminate against the transitioning employee in any way on account of the employee’s gender identity.

Use common sense in dealing with workplace dissent. Depending on the workplace, you may encounter resistance from some coworkers—especially when it comes to issues such as the transitioning employee’s restroom use. While employers should be sensitive to dissenting employees’ genuinely held religious beliefs concerning transgendered people—and even acknowledge that these employees are entitled to those views—the employer should take a firm stand against any behavior that could be construed as harassing or creating a hostile environment for the transgendered employee. It may be useful to remind employees that it is not unusual for employees to have to work with coworkers or clients that hold very different values, political opinions or religious beliefs, but that those values, opinions and beliefs are usually irrelevant to the job that they are performing at the employer.

Discuss client push-back with the employee, if necessary. While clients can be more problematic than coworkers because they can choose to take their business elsewhere, customer preference generally does not create a bona fide occupational qualification with respect to classes protected by Title VII (and more courts have held that gender identity is protected under Title VII). However, a transitioning transgendered employee may not object to having certain clients reassigned, provided that those clients are replaced with equivalent—and more tolerant—clients.

While the increase in openly transgendered employees will present challenges for some employers, this will not be the first time that American companies have had to deal with different types of folks in the workplace. When I first started practicing employment law in the early 1990s, many employers panicked when they discovered that some of their employees were not only gay, but HIV-positive. Today, sexual orientation has become a non-issue for most employers. I predict that a few years from now, people will view the transgendered in much the same way.

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.