We have all heard about the Obama administration’s directive barring employers and schools from gender identity discrimination and the battle over North Carolina’s law, known as H.B.2, which requires people to use bathrooms that match the gender listed on their birth certificate. But aside from the bathroom debate in North Carolina, there are other important developments in the area of LGBT rights that have gotten less attention but are equally important for employers and those who advise them to be aware of. Here are five things you need to consider in this rapidly evolving area of employment law:
1. Last year, OSHA published “A Guide to Restroom Access for Transgender Workers.” This publication offers best practices to employers to ensure the core principle that “all employees, including transgender employees, should have access to restrooms that correspond to their gender identity.” According to the OSHA guide, employees should be allowed to determine whether to use men’s or women’s facilities and should be provided other options, including unisex single-occupancy facilities or gender-neutral, multiple-occupant facilities with lockable single-occupant stalls.
2. If you are struggling to come up with workplace policies to address transgender issues, the Transgender Law Center may be a good place to start. Drawing from policies adopted by major employers such as Ernst & Young, Chevron, and the federal Office of Personnel Management, the Transgender Law Center has published a “Model Transgender Employment Policy” booklet, which includes sample policies for situations such as privacy, handling official records, transitioning on the job, locker room accessibility, dress codes, and health insurance, along with a sample workplace transition plan.
3. In January of 2015, the District of Columbia Office of Human Rights (OHR) initiated a research project to analyze how employers respond to resumes from applicants perceived as transgender compared to resumes of applicants perceived as cisgender. The study found that for transgender applicants, discrimination affected nearly every aspect of the interview process. Among the key findings:
- 48 percent of employers appeared to prefer at least one less-qualified applicant perceived as cisgender over a more-qualified applicant perceived as transgender.
- 33 percent of employers offered interviews to one or more less-qualified applicant(s) perceived as cisgender, while not offering an interview to at least one of the more-qualified applicant(s) perceived as transgender.
- The applicant perceived as a transgender man with work experience at a transgender advocacy organization experienced the highest individual rate of discrimination.
- The restaurant industry had the highest percentage of responses perceived as discriminatory among the employment sectors tested, although the sample numbers are low and therefore not conclusive.
Employers are advised to review their employment application processes and procedures to safeguard against disparate treatment of transgender applicants.
4. A 2015 report to assess major areas in which LGBT Americans face legal barriers, entitled “Understanding Issues Facing Transgender Americans” was prepared by the Movement Advancement Project, the National Center for Transgender Equality, and the Transgender Law Center. The report found:
- 17 states and the District of Columbia prohibit discrimination in public accommodations on the basis of gender identity, covering 36 percent of Americans.
- 18 states have clear laws prohibiting employment discrimination on the basis of gender identity or expression.
- 18 states and the District of Columbia have clear laws prohibiting housing discrimination on the basis of gender identity, covering 39 percent of Americans.
- 13 states have laws that clearly protect students from discrimination because of their gender identity and/or expression.
It should be noted that these statistics are changing daily as states enact bills to afford equal employment, housing, and other protections to members of the LGBT community. Employers need to stay abreast of legal developments in the states in which they do business in order to be sure they stay in compliance with the laws.
5. One of the first lawsuits filed by the EEOC seeking to apply Title VII protections to transgender employees was recently settled for close to $200,000. In another suit involving one of the EEOC’s first cases of sexual-orientation-based discrimination, the employer is mounting a vigorous defense. In that case, EEOC v. Scott Medical Health Center, 16-cv-00225 W.D.Pa., the employer has filed a motion to dismiss for failure to state a claim, arguing that Title VII does not apply to sexual orientation. That motion was filed on May 9, 2016 and since then, the EEOC and 14 amicus have filed briefs in opposition. Among the amicus are the American Civil Liberties Union, the Feminist Majority Foundation, and Lambda Legal Defense and Education Fund, a national non-profit organization committed to achieving full recognition of the civil rights of LGBT people. This is definitely a case to watch — as it is likely to set precedent as the issues move through the Third Circuit and possibly make their way to the U.S. Supreme Court.
Employment laws affecting LGBT workers are rapidly evolving and deserve our full attention to ensure that workplace policies, procedures, and cultures are responsive to — and in compliance with — the laws, guidelines, and enforcement strategies of the administration, the courts, and the various government agencies. It is always best to consult counsel to stay abreast of the developments in this area.
By Madeline S. Baio & Caroline J. Berdzik of Goldberg Segalla