I still remain amazed at the sold-out crowd we had at last week’s Labor & Employment Law seminar. Well over 250 people registered for the program and I kind of wanted to whisper to people: “You know this is just a LEGAL seminar, right?”
But no matter. Employment law issues are as popular as ever and we had great feedback from the crowd.
Perhaps not surprisingly, one of the areas we covered was restroom access. This seems to be one area that employers continue to grapple with. Indeed, as I noted last year in a post on the topic, the issue “that seems to get the most press is restroom access.”
Just a day after our seminar, the U.S. Supreme Court accepted a case on this very topic — meaning we are likely to get some court guidance at last. Although the case involves student access to bathrooms, many are hoping that the decision provides some clarity to employers on the issue as well.
But as SCOTUSBlog notes, the court is tackling the issue from more of a technical perspective than anything else:
The Supreme Court added five new cases to its docket this afternoon. Among the new grants was Gloucester County School Board v. G.G., the case of a transgender student who identifies as a boy and wants to be allowed to use the boys’ bathroom at his Virginia high school.
Although the controversy over the school board’s policy requiring students to use the restrooms and locker rooms that match the gender that they were assigned at birth instantly became the highest-profile case of the court’s term so far, the dispute actually centers on more technical (and, some would say, rather dry) legal issues. In this case, the district court ruled against G.G., relying on a 1975 regulation that allows schools to provide “separate toilet, locker room, and shower facilities on the basis of sex,” as long as those facilities are comparable to those provided to the opposite sex. But, in January 2015, the Department of Education’s Office of Civil Rights issued an opinion letter stating that, if schools separate students in restrooms and locker rooms on the basis of their sex, a “school generally must treat transgender students consistent with their gender identity.” In light of the 2015 letter, the U.S. Court of Appeals for the 4th Circuit reversed and ruled for G.G. It relied on the Supreme Court’s 1997 decision in Auer v. Robbins, which held that courts generally should defer to an agency’s interpretation of its own regulation.
Still, to see issues of gender identity being heard at the U.S. Supreme Court shows how far this issue has come in a relatively short period of time.
Any decision from the court, however, is likely to have a muted impact in Connecticut. Connecticut already protects against discrimination on the basis of gender identity and expression, in contrast to federal law which isn’t as explicit.
At the seminar, one of my law partners, Kevin Roy, suggested that employers who feel flummoxed by the legal rules, should approach the issue from the perspective of trying to treat employees with “dignity and respect”. That may be the simplest and easiest way to tackle a still-evolving issue.