LGBTQIA Rights and Bathroom Issues
What’s an Employer Supposed to Do?
A lot has been written and said recently about the rights of
certain individuals and their choice of bathrooms. This message
presents a short synopsis of some of these issues and how several
federal government agencies and courts have responded.
First, LGBTQIA refers to those individuals who identify themselves
as L(Lesbian), G(Gay), B(Bisexual), T(Transsexual), Q(Queer/Questioning),
I(Intersexual), and/or A(Asexual). Some writers include a + at
the end for the purpose of including all other types of sexual
Recent federal court decisions include:
The 7th Circuit Court of Appeals, which has appellate jurisdiction
over the federal courts in Illinois, Indiana and Wisconsin, has
held that Title VII of the Civil Rights Act of 1964 prohibits
sexual orientation discrimination.
Another federal court in Pennsylvania held that transgender
individuals who experience gender dysphoria are protected by
the Americans with Disabilities Act (ADA).
The 4th Circuit Court of Appeals, which has appellate jurisdiction
over the federal courts in Maryland, North Carolina, South Carolina,
Virginia, and West Virginia, has held that a transgender student
can maintain a claim under Title IX of the Education Amendments
of 1972 if a school refuses to give him/her access to the bathroom
that corresponds to his/her gender identity. Recently, the Supreme
Court vacated this decision and remanded the case back to the
4th Circuit for further consideration. At this point in time,
the 4th Circuit has not yet heard additional arguments on this
The 1st Circuit Court of Appeals, which has appellate jurisdiction
over the federal courts in Maine, Massachusetts, New Hampshire,
Puerto Rico and Rhode Island, has held that a transgender student
has a cause of action under Title IX if a school denies bathroom
access on the basis of gender identity rather than biological
Recent federal agency decisions include:
The Equal Employment Opportunity Commission (EEOC) has determined
that Title VII protects lesbian, gay, bisexual, and transgender
applicants and employees against employment bias and discrimination.
The EEOC takes the position that it would be a violation of the
law to deny an employee equal access to a common restroom which
corresponds to that employee’s gender identity.
The Office of Federal Contract Compliance Programs (OFCCP) believes
that it is illegal to make any employment decisions based on
an individual’s failure to comply with gender norms and
expectations for dress, appearance, and/or behavior as well as
the adverse treatment of employees or applicants because of their
actual or perceived gender identity or transgender status.
The Occupational Safety and Health Administration (OSHA) has
stated that “All employees, including transgender employees,
should have access to restrooms that correspond to their gender
So, what’s an employer to do? Proactive employers will
review their own policies, practices and handbooks to ensure
that they address the needs of their employees, and prevent harassment
and discrimination. Every employer should continually address
- Update organizational policies/handbooks to encompass LGBTQIA
- Require annual training for all employees and managers
on harassment and discrimination.
- Actively and consistently enforce
- Discipline violators according to your organizational
- Adopt a gender neutral dress code.
- Address the bathroom issue.
- Utilize gender neutral pronouns such
as “one” or “person” in
all verbal and written communications.
Remember, it all starts at the top of the organization. Effective
harassment and discrimination prevention efforts must start with
and involve the highest level of management in the company. However,
all employees at every level should be held strictly accountable.
A company’s best defense against the potential expense
and aggravation related to federal or state law violations is
to proactively review and revise as needed their Human Resources
policies, handbooks, hiring procedures, compensation, benefits,
training programs, communications tools and other functions.
The professionals of PHHR are ready to assist your organization
maintain compliance with the latest state and federal mandates.
Paul Hilton Human Resources Consulting works with our clients to insure that all required documentation is correct and sufficient to successfully defend against a claim to any unemployment compensation commission.
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