seminarI 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.

One of the topics we handled was one suggested by several attendees at last year’s seminar: Transgender Issues in the Workplace.  I’ve talked about this before in some prior posts here and here.

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.

restrm1Last fall, I raised the issue of bathroom access for employees that corresponds with their gender identity.

The issue, however, that seems to get the most press is restroom access.

Indeed, we’re now getting federal guidance on how to deal with the issue of restroom access. That remains one of the bigger issues (a proposition up on a Houston ballot turned into an ugly campaign of “No Men in Women’s Bathrooms”) but it doesn’t seem again to translate to claims filed.

What’s happened since then? Well, we’ve seen it become a topic on the presidential campaign trail and in North Carolina.

But we’ve also seen the EEOC say: Wait a minute. Federal law has something to say on this too.

Yesterday, the EEOC went a step further and issued a new fact sheet reminding employers that even a contrary state law isn’t a defense.

In Macy v. Dep’t of Justice, EEOC Appeal No. 0120120821, 2012 WL 1435995 (Apr. 12, 2012), the EEOC ruled that discrimination based on transgender status is sex discrimination in violation of Title VII, and in Lusardi v. Dep’t of the Army, EEOC Appeal No. 0120133395, 2015 WL 1607756 (Mar. 27, 2015), the EEOC held that:

  • denying an employee equal access to a common restroom corresponding to the employee’s gender identity is sex discrimination;
  • an employer cannot condition this right on the employee undergoing or providing proof of surgery or any other medical procedure; and,
  • an employer cannot avoid the requirement to provide equal access to a common restroom by restricting a transgender employee to a single-user restroom instead (though the employer can make a single-user restroom available to all employees who might choose to use it).

Contrary state law is not a defense under Title VII. 42 U.S.C. § 2000e-7.  In G. ex rel. Grimm v. Gloucester Cty. Sch. Bd., — F.3d –, 2016 WL 1567467 (4th Cir. 2016), the United States Court of Appeals for the Fourth Circuit reached a similar conclusion by deferring to the Department of Education’s position that the prohibition against sex discrimination under Title IX requires educational institutions to give transgender students restroom and locker access consistent with their gender identity.

Gender-based stereotypes, perceptions, or comfort level must not interfere with the ability of any employee to work free from discrimination, including harassment. As the Commission observed in Lusardi:  “[S]upervisory or co-worker confusion or anxiety cannot justify discriminatory terms and conditions of employment.  Title VII prohibits discrimination based on sex whether motivated by hostility, by a desire to protect people of a certain gender, by gender stereotypes, or by the desire to accommodate other people’s prejudices or discomfort.”

Connecticut is one of the few states that already prohibits discrimination on the basis of gender identity. Thus, the EEOC’s statement should be seen as one in support of the interpretation in Connecticut.

For employers, keep it simple: Let employees use the bathroom that corresponds to the employee’s gender identity.  But it can also mean turning single-occupant bathrooms into gender-neutral ones too.  You can look at the OSHA guidance on this issue for more best practice tips.  If any employee complains, well, that’s not enough of a reason to deny access.

Last week, I had the pleasure of speaking before the Connecticut Bar Association’s LGBT Section regarding the status of transgender claims along with CHRO Staff Attorney Alix Simonetti.  My thanks to the section for the invitation.  It didn’t hurt that it was held at the Hartford Flavor Company, either.

The talk was mainly informal but it was a lively discussion of some of the critical components of the law over the last few years.

Back in 2011 (seems so long ago, right?), the Connecticut General Assembly passed a wide-ranging bill protecting gender identity and expression.  The impact of the law was debated back then. Would it be significant? Would it lead to an increase in claims?

Well, the answer to the first question is yes, it’s been significant because the issue of transgender discrimination has moved ever more into the mainstream with Caitlyn Jenner making headlines and shows like “Transparent” receiving critical acclaim.  Connecticut looks downright ahead of its time.

But the claims haven’t really appeared.

There have been just 15 or so gender-identity in employment discrimination claims filed with the state agency (CHRO) since the law’s inception.

Why? The reasons can be debated — perhaps fear, lack of awareness, an improving economy? — but the claims represent just a tiny fraction of the 7500+ claims filed over that time.

The issue, however, that seems to get the most press is restroom access.

Indeed, we’re now getting federal guidance on how to deal with the issue of restroom access. That remains one of the bigger issues (a proposition up on a Houston ballot turned into an ugly campaign of “No Men in Women’s Bathrooms”) but it doesn’t seem again to translate to claims filed.

OSHA’s guidance over the summer suggests keeping it simple: Employees should have access to the restroom that corresponds to his or her gender identity. Period. If other employees complain, well, that’s not a good enough reason to deny access to the transgendered employee.

But there are other best practices, such as making single-occupant bathrooms gender-neutral (think family restrooms in stadiums and airports) that are suggested as well.

Some employers may not have had to address the issue yet. But being aware of the issues ahead of time — and figuring out how you will tackle them — is something that should be on the radar for 2016.

Jon Hyman, who runs the Ohio Employer’s Law Blog, dropped a couple of posts last week on employee’s rights to, um, use the bathroom.

He started with a post on the right to a workplace bathroom and related breaks, and followed it up on whether employees have a right to be paid during their bathroom breaks (in case you were wondering, they do).

Of course, bathroom talk has appeared on this blog too, in posts here, for example.

But besides the federal laws on the subject (which state that “Toilet facilities, in toilet rooms separate for each sex, shall be provided in all places of employment”), what about the Connecticut ones? Well, it turns out that our older state laws on the subject have yet to be, ahem, flushed down the toilet.

For example, Conn. Gen. Stat. Sec. 31-36 mandates that the DOL can require owners of “any foundry in which ten or more persons are employed” to provide for a toilet room. With running water.  (In case you were too embarassed to ask, a foundry is a factory that produces metal castings.)  That’s not likely to apply to many employers in Connecticut anymore.

Similarly, owners of “tobacco plantations” that have 25 or more employees, must provide private toilet accommodations for both sexes — or be penalized between $20-100 (Conn. Gen. Stat. Sec. 31-38.)  Of course, while Connecticut still does have a decent shade tobacco crop, you don’t hear a lot about such crops anymore.

Railroad employees — in a statute dating back to 1959 — are similarly entitled to “sanitary” facilities and the Connecticut DOL is to conduct inspections once a year on such sanitary facilities.  (Conn. Gen. Stat. Sec. 31-38a.)

The Connecticut Department of Labor has also issued some guidelines, such as for Industrial Health Facilities that require that “Toilet Facilities shall be provided” in the facility or nearby.

On a related note, Connecticut did pass a law a few years back that gives members of the public some access to employee restrooms in retail establishments but there’s no requirement that such restrooms exist in the first place.

 

A bill which would allow individuals with certain medical conditions access to private employee restrooms in retail establishments was reported out of the Legislative Commissioner’s Office and approved by various committees on Tuesday.

House Bill 6328 (download here) states that "Any retail establishment that has a restroom for employee use, which typically does not permit customer access to such employee restroom, shall permit a customer to use the employee restroom during normal business hours if the restroom is maintained in a reasonably safe manner."

But the bill also requires that four other conditions to be met too: 

(1) The customer requesting access to the employee restroom presents written evidence, issued by a licensed health care provider, that documents that the customer suffers from an eligible medical condition;

(2) A public restroom is not immediately accessible to the customer;

(3) At the time that the request for access to the employee restroom is made, three or more employees of the retail establishment are working; and

(4) The employee restroom is located in an area of the retail establishment that does not present an obvious risk to the health or safety of the customer or an obvious security risk to the retail establishment.

The bill moves on to the House floor where, according to the Associated Press, some legislators have expressed reservations about it.

The bill is obviously well-intentioned. Those with conditions like Crohn’s disease may have the sudden onset of the need to use the restroom and its a serious and genuine condition.(You can view the Crohn’s & Colitis Foundation of America website here, which has some very helpful information.  That organization even offers members the opportunity to print cards that state the person has a medical condition that requires you to use the bathroom urgently.) And for employers, being flexible in your bathroom access may win you a few more customers in the long-term. 

So, while this is one of those bills that pops up from time to time that may be very well meaning, it would create yet another series of regulations that employers would need to regulate.   All the exceptions of the bill only add to the disruptive nature of the bill.  Can you imagine an employer trying to figure out (with a customer standing there) whether the business meets various exceptions on the fly?  And you can imagine other issues that might come up such as what about allowing families with small kids the same sort of access?

2009 is shaping up to be among the busiest years in a decade for employers. This is just another bill to be on the lookout for as the session winds up in the next month or so.