Posts Tagged ‘Title VII’

Restricting Transgender’s Use of Restroom Found in Violation of Title VII

Thursday, July 9th, 2015

George Ports, CAI’s Senior Executive and HR Advisor, shares important information on handling the sensitive issue of transitioning and the workplace.

George Ports, Senior Executive and HR Advisor

George Ports, Senior Executive and HR Advisor

No doubt you’ve heard the name Caitlyn Jenner mentioned a few times around your office over the past few months.  Some label Bruce Jenner’s transition as courageous while others label it disturbing.  Either way, when employees decide to make a gender transition, it can create employee relations issues for employers. Is there a best way to handle this situation?

Well first let’s look at what the government says.  The Equal Employment Opportunity Commission (EEOC) found on April 1, 2015 that restricting a transgender employee (transitioning from male to female) from using the common women’s restroom was sex discrimination under Title VII.   The agency also ruled that the continued refusal by one of her supervisors to use her changed name and appropriate gender pronouns established a hostile work environment because it was deliberate and openly practiced in the workplace.

The individual, a civilian employee working for the US Army as a software quality assurance lead, began discussing her gender identity issues with the quality division chief in 2007, began the process of transitioning her gender expression in 2010, and officially changed her name with the state.  She was also successful in getting the government to change her name and sex on all her personnel records. She met with her supervisor and his supervisor in October of that year to request time off for medical procedures and announced her transition to her co-employees in November.  To read this case in its entirety, go to Lusardi v McHugh.

One of the first dilemmas employers face in these transitioning processes is which restroom does the person use? In this particular case, it was understood that the individual would use a “single-user” restroom until she had undergone “final surgery”.  The EEOC stated that an employer cannot restrict access to facilities until surgery was completed determining the individual’s sexual identity.

Another issue in this case dealt with the use of male gender pronouns. The employee claimed that her supervisor intentionally referred to her by her former male name and used male pronouns when referring to her in front of other employees (this was corroborated by witness testimony during the agency’s investigation). The EEOC found that continued refusal to use an employee’s correct name and gender may be sex-based harassment and create a hostile work environment.

While is it understandable that a supervisor persistently calling the individual by her former male name and using male pronouns when referring to her in front of her peers creates a hostile work environment, it is disappointing that the EEOC did not thoroughly consider the major employee relations issues generated by a male transitioning to a female using female restrooms. This could create issues not only with the female employees, but also with the female employees’ spouses and or their significant others.

OSHA has also recently put out guidance for employers on accommodating transgender employees restroom preferences.  That guidance is attached to this article.  OSHA’s core principle is that all employees, including transgender employees, should have access to restrooms that correspond to their gender identity.

We frequently receive calls from members about the restroom issue.  What should you do?  First, we believe it’s important to keep an open dialogue with the transitioning employee.  If available and reasonably accessible, single-occupancy or unisex facilities can serve as a temporary facility for transitioning employees during the transition process, but should not be a permanent solution.  If you don’t have such facilities, discuss the sensitive nature of the situation with the transitioning employee.  Suggest that restroom breaks be taken at low traffic times to reduce awkward moments, adding that the transition affects not only the individual going through the process but all other employees of the person’s desired gender.  If none of these options will work, you might also consider requiring the transitioning employee to use the bathroom that matches their biology.  Of course, as noted earlier, the EEOC doesn’t support this option, and it does pose other risks, but sometimes you have to do what’s in the best interests of all employees and not just one.  Especially if you are faced with an employee relations problem with a large group of female employees (and their spouses), or vice versa, who don’t want to use the restroom alongside this transitioning employee.

If you find yourself in this situation, please give us a a call at 919-878-9222 or 3336-668-7746. We can help you think through what course of action makes sense for your organization.

Seven Things N.C. Employers Need to Know about EEOC Charges

Wednesday, July 7th, 2010

Recently, CAI members had the opportunity to learn more about Equal Employment Opportunity Commission (EEOC) charges during our Ask the Expert programs.  The EEOC enforces Title VII, which prohibits discrimination or harassment based on age, disability, genetics, national origin, pregnancy, race/color, religion, or sex.  Title VII also protects employees from retaliation for complaining about discrimination or participating in an investigation.

EEOC officials Thomas Colclough, Jose Rosenberg and Tina Burnside took questions from the audience and provided insight on the EEOC investigative process. Some of the key points from the presentations include:

1. Categories of Charges. The EEOC prioritizes charges as category A (charges that fall within the national or local enforcement plan, or other charges that will likely result in a cause finding), category B (charges that require additional information to determine the merit of the charge) or category C (charges suitable for dismissal).

2. Employer Notice. If a charge is filed against an employer, the employer will receive a Notice of Charge form from the EEOC within 10 days.  The Notice of Charge will include the name of the employee making the charge, the nature of the charge, what action is required by the employer and the date that a response is required.

3. Mediation Option. Mediation is free and conducted by EEOC mediators or contracted mediators, and the parties (employer and employee) decide on the course of action (facilitated by mediators).  There is no decision on “fault.”  The mediator drafts an agreement based on the negotiated settlement by the parties, and all parties sign the agreement, which is binding.  Unsuccessful mediation will result in the charge going back into the investigation process.  Category A charges are not eligible for mediation.

4. Investigation Process. The investigation process may include a request for a Position Statement, Request for Information (RFI), a Fact-Finding Conference, witness interviews, document review, on-site investigation, predetermination settlement discussions (if EEOC finds fault by the employer), and/or subpoena.

5. Position Statement.  Employers are normally given 30 days from the date the Notice of Charge is mailed to respond to the EEOC with a Position Statement.  The Position Statement is one of the most critical documents the employer submits to the EEOC.  Employers should spend time developing the Position Statement to answer each issue raised by the charging party.

6. Conciliation. If the EEOC determines there was merit to the charge after the completion of the investigation, a Letter of Determination will be issued to the parties to invite them to participate in conciliation.  The settlement may include damages such as back pay, front pay, hiring, reinstatement, promotion, reasonable accommodation, attorney’s fees, and non-monetary relief like training, as well as a provision not to discriminate.  The conciliation agreement includes a provision prohibiting the charging party from disclosing details about the settlement.  These agreements are binding and enforceable in court.

7. Settlement. Settlement of the charge may be made at various points in the process.  If settled after a lawsuit is filed, the settlement is not confidential.  In this case, the EEOC settles by Consent Decree, and the court monitors the agreement for three years.

Photo Source: tjshirey