I am the HR director for a medium-sized manufacturing company. I need your advice in dealing with a delicate situation. A recently-hired employee, Lola, came to me the other day and confided that she is transgender; biologically she is male but identifies as female. Lola also informed me that her psychologist has recommended that she be able to use company facilities of the gender with which she identifies.
This would mean allowing Lola to use the women’s restrooms. In addition, our company has an on-site fitness facility. Lola believes that she also should be able to use the women’s locker room when using the workout facility. Please help. Do we really need to agree to Lola’s requests? If we grant Lola’s request, what do we do if other female employees are uncomfortable sharing the restroom and locker room with Lola?
Trying to Do the Right Thing
The world certainly can be confusing at times. Just as there may be gay, lesbian and bisexual employees at any company, there also may be employees who are transgender. Some of these employees are open about their gender identity or expression and others may not be. It is clear, however, that an employer must take measures to ensure that transgender employees have access to company facilities consistent with their gender identity.
The Law: While Title VII of the Civil Rights Act does not explicitly include gender identity in its list of protected bases, the Equal Employment Opportunity’s Commission interprets the statute’s sex discrimination provision as prohibiting discrimination against employees on the basis of gender identity. In addition, the Occupational Safety and Health Administration takes the position that all employees should be permitted to use the facilities that correspond with their gender identity.
Legally, it is clear that you need to take measures to ensure that Lola has access to company facilities that correspond with her gender identity. As a practical matter, this should not be a big deal when it comes to her use of the women’s restrooms. I am assuming that your restrooms have stalls with lockable doors. This should provide sufficient privacy for Lola and her female coworkers.
Some employers have suggested the alternative of creating a separate “unisex” restroom for transgender employees. I do not think that this is a good approach. One of the lessons that we should have learned from the era of racial segregation is that “separate but equal” is not truly equal. Transgender employees should be allowed to use the restroom that corresponds with their gender identity. If coworkers are uncomfortable with a transgender employee’s use of the same restroom, those coworkers should be allowed to use the unisex restroom.
The locker room is a bit trickier. If possible, your company should ensure private shower and changing areas in the locker room by using stalls or even curtains. No single solution will work for every work site, but all efforts should be made to protect the transgender employee’s dignity while also protecting the privacy of all employees using the locker room.
Undoubtedly, your trickiest issue will be dealing with coworkers’ attitudes. While I like to believe that most people these days are fairly enlightened when it comes to these issues, the reality is that there likely will be a few small-brained coworkers who just don’t get it. At the outset, your company’s Equal Employment Opportunity policy and Harassment Policy should be amended to add gender identity and expression as a protected class.
You will need to remind all employees that they are expected to conduct themselves in accordance with these policies. Employees also need to be reminded that they must work cooperatively with their coworkers regardless of their gender identity and that failure to do so could result in corrective action. A lack of knowledge about transgender issues certainly has the potential for creating misunderstanding and tension in the workplace. Educating employees about these issues is the best approach.
I am encouraged by the fact that you thought to seek advice on this tricky issue. It is nice to know that there are people out there who are trying to do the right thing.
The “Dear Atty.” column is aimed at answering employers’ legal questions that surround issues in human resources. Attorney Pete Albrecht of Albrecht Backer Labor & Employment Law, S.C. welcomes you to submit questions here for future editions of “Dear Atty.”
If you would like additional information about this topic, please contact Pete Albrecht. He is the president and a shareholder at Albrecht Backer Labor and Employment Law. Pete has represented employers for over 28 years and his law office is located in Madison, Wisconsin.