Human Resources Consulting - Columbia SC

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 affiliations.

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 case.

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 gender.

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 identity.”

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 the following:

  • Update organizational policies/handbooks to encompass LGBTQIA issues.
  • Require annual training for all employees and managers on harassment and discrimination.
  • Actively and consistently enforce your policies.
  • Discipline violators according to your organizational policies.
  • 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.

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Paul Hilton, Human Resources Consulting, LLC
Columbia, South Carolina
Office: (803) 481-9533
Cell: (803) 305-8962 

Paul Hilton, Human Resources Consulting, LLC