Transgender Accommodation Issues at the Forefront of Employment and Education

Earlier this month, the Equal Employment Opportunity Commission (EEOC) released a new Fact Sheet, announcing its formal position on bathroom access rights for transgender employees.  The Fact Sheet provides employers with a nuanced look into what practices and procedures the EEOC will be investigating should a charge be brought alleging sex discrimination in the context of bathroom usage by transgendered individuals.

As noted therein, the EEOC defines the term “transgender” as referring to “people whose gender identity and/or expression is different from the sex assigned to them at birth,” and specifically notes that “[a] person does not need to undergo any medical procedure to be considered a transgender man or a transgender woman.”

The EEOC reiterates that it enforces Title VII of the Civil Rights Act of 1964 in instances of discrimination against transgendered individuals, as Title VII prohibits employer discrimination on the basis of sex where the action is “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.” The EEOC also noted that employers cannot and should not rely on state laws contrary to this guidance.

Bathroom Access Rights for Transgender Employees Under Title VII

The EEOC’s interpretation of “transgender” in the context of Title VII and bathroom usage is based upon two cases before the EEOC: Macy v. Dep’t of Justice, EEOC Appeal No. 0120120821, 2012 WL 1435995 (Apr. 12, 2012) and Lusardi v. Dep’t of the Army, EEOC Appeal No. 0120133395, 2015 WL 1607756 (Mar. 27, 2015), as well as a recent opinion from the Fourth Circuit in G.G. ex rel. Grimm v. Gloucester Cty. Sch. Bd., — F.3d –, 2016 WL 1567467 (4th Cir. 2016).

Lusardi held that prohibiting equal access to a common restroom corresponding to the employee’s gender identity is sex discrimination.  Further, in Macy, the EEOC noted that an employer cannot avoid the requirement to provide equal access to a common restroom for transgender employees by providing single-user restroom access instead.  However, the EEOC advised that an employer can make single-user bathrooms available to all employees who might choose to use them. In G.G., the U.S. Court of Appeals for the Fourth Circuit followed the Department of Education’s position that sex discrimination under Title IX is prohibited and that educational institutions are to give transgender students access to bathrooms and locker rooms consistent with their gender identity.

In the Fact Sheet, the EEOC reaffirms its position that any state law to the contrary of these decisions and interpretations is not a defense under Title VII.  Thus, employers would be wise to update their policies and procedures to conform with the EEOC’s directives as to transgendered individuals, rather than look to their resident state for guidance.

Transgender Access to School Bathrooms

On May 13, 2016, President Obama issued a directive that requires every public school to provide appropriate access for transgender students or risk the loss of federal funds. The directive has received strong backlash from conservative leaders who have accused the President of blackmailing and the federal government of getting involved in local issues.

On the same day, the Department of Education and the Department of Justice (“the Departments”) issued a Dear Colleague letter to assist in ensuring that transgender students can “enjoy a supportive and nondiscriminatory school environment.” Although the joint letter does not carry force of law, the intent is clear: schools must agree or lose federal funding.  Specifically, schools must agree that that it will not exclude, separate, deny benefits, or otherwise treat students differently on the basis of sex in its educational programs or activities unless Title IX so authorizes. Schools are required to treat transgender students according to the gender that they identify as soon as a parent or guardian notifies the district that the identity is different from previous records.

Much like the EEOC guidance pertaining to employers, the Departments do not require a medical diagnosis or treatment as a prerequisite to be considered transgender; they also explicitly state that accommodating the discomfort of others cannot be justified by excluding or singling out a particular class of students. The Departments provide specific guidance on sex-segregated activities and facilities and reiterate that schools may provide separate facilities (including housing) but must allow transgender student to access those which align with the gender that which the student identifies. Records must be kept consistent with the gender that which the student identifies with as well. There are some limitations. The Departments note that non-vocational elementary and secondary schools and private undergraduate institutions are permitted under Title IX to set their own sex-based admissions policies.

New York City Commission on Human Rights’ Transgender Guidance

On May 19, 2016, New York City’s Commission on Human Rights (NYCCHR) issued new guidelines requiring employers and landlords to implement transgender pronouns (“ze/hir”) as requested by transgender workers or tenants. Failure to comply may open organizations and individuals up to $250,000 in fines if that failure is motivated by malicious intent.

NYCCHR specifically notes that “harassment motivated by gender is a form of discrimination” and outlines examples of violation of its guidance in the context of failure to use an individual’s preferred name or pronoun, refusing to allow individuals to utilize single-sex facilities and programs consistent with an individual’s preferred gender, sex stereotyping, imposing different uniforms or grooming standards based on sex or gender, providing employee benefits that discriminate based on gender, considering gender when evaluating requests for accommodation, and engaging in discriminatory harassment and retaliation.

For more information regarding the EEOC’s Fact Sheet, related guidelines, and best practices with respect to transgender individuals in the workplace, please contact Dina M. Mastellone, Esq., Director of the firm’s Human Resources Practice Group, at dmastellone@nullgenovaburns.com or 973-533-0777.

Top Ten Policies Every Employee Handbook Should Have

An Employee Handbook is a critical communication tool that sets forth corporate goals, policies and objectives as well as the expectations demanded of employees.  An effective Employee Handbook also ensures fair treatment for employees and, when drafted correctly, limits an employer’s exposure to liability.  In this post, we address our top ten list of employment policies that should be contained in every Employee Handbook:

1) At-Will Employment Disclaimer:  This disclaimer enforces that employment may be terminated by either the employer or employee at any time, without reason or notice.  The disclaimer should also state that the Handbook is not a contract of employment, and that the policies can be changed at any time at the Company’s sole discretion.

2) Equal Employment Opportunity (EEO): An EEO policy confirms that the Company will provide fair and equal treatment to all employees in all the terms and conditions of employment without regard to the person’s race, color, sex, age, disability, religion, national origin, veteran status and/or any other status protected by applicable federal, state or local laws.

3) Prohibited Harassment and Discrimination:  This policy should prohibit discrimination, harassment and retaliation in the workplace based on a person’s race, color, religion, national origin, sex, age, disability, veteran status or any other classification protected by federal, state or local law.   The policy should also contain multiple avenues of complaint if the employee believes her or she is the victim of harassment, discrimination or retaliation.

4) Retaliation: A separate retaliation policy is strongly recommended and should prohibit any adverse conduct against an employee who reports alleged improper or wrongful activity.  Such a policy should encourage employees to report impropriety and wrongful activity in good faith.

5) FMLA:  If your Company employs 50 or more employees, you are required to comply with the Federal Family and Medical Leave Act which allows eligible employees 12 weeks of unpaid leave each leave year.  The FMLA requires that your Handbook contain an FMLA policy.

6) Americans with Disabilities Act Amendments Act (ADAAA):  An ADAAA policy prohibits discrimination against any qualified employee or job applicant with respect to any terms, privileges, or conditions of employment because of a person’s physical or mental disability, as defined by the statute.   The ADAAA requires employers to accommodate disabilities, and also requires employees to seek accommodations and to engage with the employer in a process to find reasonable accommodations.

7)  Discipline: Having a well-defined discipline policy will provide employees with clear guidance regarding their workplace behavior.  It is important that personnel actions be well-documented.

8) Monitoring Electronic Communications:  With the prevalent use of workplace computer systems, employers should reserve the right to review and monitor all information that passes through their computer systems.  This policy should remind employees that there is no expectation of privacy in any communication—whether business related or personal—performed using company equipment.

9) Alcohol and Drugs:  A drug and alcohol policy is important to protect the safety, health, security and well-being of your employees and customers.

10) Confidentiality: A confidentiality policy will acknowledge that employees have access to confidential and proprietary information, require employees to keep this information confidential during employment, and after termination, and provide guidelines for the handling of such information.

This list is not intended to be exhaustive.  All employment policies should be reviewed regularly with experienced legal counsel to determine whether revisions are required.

For more information on these policies and employee handbooks in general, please contact Dena B. Calo, Esq., Director of the Human Resources Practice Group and Partner in the Employment Law & Litigation Group, at dcalo@nullgenovaburns.com, or Erica B. Lowenthal, Esq., Associate in the Employment Law & Litigation Practice Group, at elowenthal@nullgenovaburns.com.