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July 20, 2016 Articles

Creating an Inclusive Workplace for LGBT Employees

The courts and the EEOC have provided examples of scenarios that may be considered gender identity or sexual orientation discrimination.

By Elizabeth Joiner and Angelique Lyons

It is critical in today’s workplace for employers, and the attorneys who represent them, to understand their responsibilities toward employees who are homosexual or those with gender identity issues. The law in this area is continually evolving, and businesses must stay ahead of the curve because courts are retroactively applying new interpretations of existing laws. This article explores the various legal issues facing employers in addressing lesbian, gay, bisexual, and transgender (LGBT) employees, and suggests ways to proactively address these matters in your workplace to create an inclusive environment.

Currently, Title VII of the 1964 Civil Rights Act does not explicitly protect LGBT individuals from workplace discrimination. Nevertheless, the Equal Employment Opportunity Commission (EEOC) has made it clear that it considers all members of the LGBT community protected under Title VII’s prohibition against sex discrimination. Although the EEOC’s decisions are not binding on federal courts, some federal courts have adopted the commission’s interpretation that Title VII protects members of the LGBT community even without a specific protection in current discrimination statutes. See e.g.Chavez v. Credit Nation Auto Sales, LLC, No. 14-14596, 2016 WL 158820, at *1 (11th Cir. Jan. 14, 2016);Smith v. City of Salem, Ohio, 378 F.3d 566, 568 (6th Cir. 2004).

As a preliminary matter, to fully understand the legal issues, it is important to be familiar with the terms used to identify these individuals and to differentiate between sexual orientation and gender identity disorder (GID). Specifically, sexual orientation is a legal concept understood to refer only to whether a person is homosexual, heterosexual, or bisexual. Generally, federal and state courts do not (yet) recognize individuals who are homosexual as a protected class under current discrimination laws. The commission, on the other hand, recognizes sexual orientation as a protected category and has recently filed two lawsuits against employers under this theory. As distinct from sexual orientation, GID is a recognized psychiatric diagnosis based on evidence of a strong and persistent sense of being male or female, coupled with persistent discomfort and stress about one’s assigned sex or a sense of inappropriateness in the gender role of that sex. An employee who is transgender has GID. Accordingly, his or her expression or behavior differs from that typically associated with his or her sex at birth. A transgender employee may, but is not required to, decide to transition to the sex with which he or she identifies. If a transgender employee does transition, he or she is not required to undergo sex reassignment surgery prior to protection. Because transgender employees do not conform to traditional notions of gender, and gender stereotyping is protected under Title VII, we are seeing more courts recognize transgender employees as a protected class of persons (as a subset of gender discrimination).

Human resources professionals and in-house counsel need to weigh the requirements of the law within their jurisdiction (including any state or local laws, or any cases involving Title VII) against the needs of all employees, including LGBT employees, in creating an inclusive workplace environment. If you are a federal contractor or subcontractor, pursuant to Executive Order 11246, you should already have in place a policy protecting LGBT employees from workplace discrimination. For those companies operating in jurisdictions without any of these protections, the employer is not required to modify its policy but may do so if such an action is consistent with other business objectives. Because your employee manual is not considered a contract in most jurisdictions, including language protecting LGBT employees does not create any additional legal burden on the company under Title VII.

Even though the law is still relatively new in this area and there are very few answers that are straightforward, the courts and the EEOC have provided the following examples of scenarios that may be considered gender identity or sexual orientation discrimination:

  • Terminating a transgender employee after the employer finds out about the employee’s gender identity or planned transition. EEOC v. Lakeland Eye Clinic, P.A., No. 8:14-cv-2421-T35 AEP (M.D. Fla. filed Sept. 25, 2014) (settled Apr. 9, 2015).
  • Requiring a transgender employee to use a restroom not consistent with the employee’s gender identity or presentation, or requiring the employee to provide medical documentation of his or her anatomical sex. Kastl v. Maricopa Cty. Cmty. Coll. Dist., 2004 WL 2008954, at *1 (D. Ariz. June 3, 2004).
  • Treating an LGBT employee adversely for failing to hold or follow the employer’s religious beliefs. Terveer v. Billington, 34 F. Supp. 3d 100, 113 (D.D.C. 2014).
  • Harassing a transgender employee by calling the employee by the employee’s previous name, or intentionally and consistently using the incorrect gender pronoun while describing the transgender employee. See Lusardi, EEOC DOC 0120133395, 2015 WL 1607756, at *8 (Apr. 1, 2015).
  • Permitting and/or refusing to investigate claims of harassment based on sexual orientation by coworkers and supervisors. Koren v. Ohio Bell Tel. Co., 894 F. Supp. 2d 1032 (N.D. Ohio 2012).
  • Failing to promote an employee based on LGBT status. Baldwin v. Foxx, EEOC Appeal No. 0120133080, 2015 WL 4397641 (EEOC July 15, 2015).
  • Disciplining, reassigning, or terminating an employee for failing to conform to a company dress code policy that makes no effort to accommodate transgender individuals. Broussard v. First Tower Loan, LLC, No. CV 15-1161, 2015 WL 8478573, at *6 (E.D. La. Dec. 10, 2015), as modified on denial of reconsideration, No. CV 15-1161, 2016 WL 879995 (E.D. La. Mar. 8, 2016) (EEOC intervened to argue that sex-specific dress codes are a violation of Title VII).
  • Not providing leave under the Family and Medical Leave Act to a homosexual employee to care for his or her spouse. See e.g.Obergefell v. Hodges, 135 S. Ct. 2584, 192 L. Ed. 2d 609 (2015); see also 29 C.F.R. §§ 825.102, 825.122(b).

Accordingly, in developing a plan of action, a number of factors will need to be considered, many of which are outside the scope of a legal analysis. The following issues are becoming more common, and an employer should be prepared to address concerns by understanding the legal requirements and considerations in play. The information below is to serve as a reference point in making these decisions.

Antidiscrimination and anti-harassment training. Unless you are a federal contractor or subcontractor, there is no an obligation under federal law to provide training related to LGBT employees. However, if your jurisdiction mandates protection for employees within this group, then your organization needs to be aware of the possible harassment based on the protected category. In providing training to supervisors and employees regarding harassment, you should broaden your definition to include harassment based on any protected LGBT category. Also, many employers are providing specific training to supervisors on the issue of transgender and transitioning employees as part of their annual supervisor training, even if there is not a transitioning employee currently in the workplace.

Restroom access. Employers are legally required to provide workers reasonable access to restroom facilities. In 2015, the Occupational Safety and Health Administration (OSHA) issued a best practices document entitled A Guide to Restroom Access for Transgender Workers, which explains that “all employees, including transgender employees, should have access to restrooms that correspond to their gender identity.” In its guide, OSHA further notes that an employee who identifies as a man should be permitted to use the men’s restrooms without having to provide any medical or legal proof of his gender identity. Because OSHA’s best practices are just recommendations, the EEOC and courts have been called upon to decide when a transgender employee may use the restroom reserved for employees of the sex with which that person identifies. The EEOC takes the position that an employee should be permitted to use the restroom for the gender with which the employee identifies and that the employee does not have to be currently in the process of transitioning in order to do so. See Lusardi, EEOC DOC 0120133395, 2015 WL 1607756, at *10 (Apr. 1, 2015). According to the commission, because equal access to restrooms is a significant, basic condition of employment, the employer’s refusal to allow the transgender employee to use the restroom that other persons of the same gender were freely permitted to use constituted a harm or loss with respect to the terms and conditions of employment. Courts, on the other hand, are split—some hold that an employer must allow a transgender employee to use the restroom for the gender with which he or she identifies, and others hold that it is not discrimination to require the employee to use the restroom designated for his or her anatomical sex. Compare, e.g.Etsitty v. Utah Transit Auth., 502 F.3d 1215 (10th Cir. 2007), withMichaels v. Akal Sec., Inc., No. 09-CV-01300-ZLW-CBS, 2010 WL 2573988, at *1 (D. Colo. June 24, 2010).

In light of the lack of specific guidance on this issue, employers are often faced with difficult decisions in deciding how to accommodate an employee’s need for restroom access. The easy question involves the employee who has already undergone sex reassignment surgery. In that case, the employee must be allowed access to the restroom consistent with the employee’s transitioned sex. An employee who has undergone a sex transition and reassignment is to be considered consistent with the newly assigned gender role and therefore must have access to a restroom facility for that gender. If the employee has not yet completed gender reassignment, employers are faced with the difficult question of what restroom is appropriate and required for the employee. If the employer has a single-occupant restroom facility, the transgender employee can use this facility without concern. However, if the single-occupant restroom is not located in the work area or not accessible to other employees, the employer may face a claim of unfair disparate treatment. If the employer does not have a single-occupant restroom facility, the employer may be required to provide the employee with a restroom facility consistent with the employee’s perceived gender that is safe, convenient, and respectful of the transgender employee. To determine the best solution, human resources should work directly with the transgender employee to identify the options and fashion the best solution.

Dress code. If an employer has a sex-specific dress code, this could raise concerns for a transgender employee. Typically, gender neutral dress codes that require professional attire, clean clothing, no blue jeans, and the like do not present a problem as the rules apply to all employees equally. However, some industries do have dress code requirements that vary based on the sex of the employee—for example, prohibitions on ear piercings for males, restrictions on the length of hair for males, and the requirement of khaki pants for males—which are more difficult to enforce with a transitioning employee. Typically, the best recommendation is to require a transitioning employee who is presenting as the newly assigned gender to follow the dress code for that gender. The transitioning process may take well over a year, with sex reassignment surgery either as the last step or never occurring at all. Therefore, employers should be cautious about requiring documentation that an employee’s sexual anatomy has been altered.

Names and pronouns. While it may take years for transgender employees to legally change their identifying documents, including Social Security card, to reflect their new identity, employers should not wait until such steps are complete to address the issue of using the appropriate names and pronouns for the transitioning employee. In jurisdictions where transgender employees are protected, the company should use the name and pronouns appropriate to the employee’s new gender as soon as the employee begins transitioning, i.e., living full-time as the preferred gender. Some documents, including payroll records, will not be able to reflect the new name until the legal name change is completed. In that case, the employer should strive to use the appropriate name and pronouns to the greatest extent possible. When doing so is not possible, the employer should meet with the employee and explain the limitations. Adopting a respectful and open communication on such issues will likely go far to avoid misunderstandings and claims of unfair treatment. Conversely, in jurisdictions where protection is not offered to the transgender employee, the employer does not have an obligation to change the employee’s name on company documents until the employee has completed his or her legal transition. The same recommendations apply for a male homosexual who takes the last name of his spouse.

Confidentiality. Maintaining confidentiality of employee matters, especially health information, is critical for all employers. When an employee is transitioning, this presents a unique challenge. It is often necessary to advise employees of the situation so that proper steps can be taken to prevent harassment and foster acceptance within the organization. However, before taking such steps, the employer must meet with the transitioning employee to make certain there is consent to share the confidential information. If an employee who is thinking about transitioning approaches human resources to discuss the process and asks the employer to keep the information private, it is critical that this request be honored and privacy be maintained. Preemptively providing training to your employees and supervisors before a transitioning employee is identified is a safe way to ensure that the transgender employee does not feel singled out among his or her peers.

As noted above, for Title VII purposes, the definition of “sex” has changed dramatically. Therefore, the prudent employer in jurisdictions that recognize sexual orientation and gender identity as protected under Title VII or state statutes should ensure that LGBT groups are added as protected classes to their equal opportunity and harassment policies and that managers and employees are trained on them just as with any other type of harassment training. However, simply adding a few words to policies and providing some training are not enough. Prudent employers should examine their workplaces in light of the changing law to proactively address the many issues faced by employers when creating an inclusive work environment.

Keywords: litigation, corporate counsel, transgender employee, sex discrimination, Title VII, restroom access, dress code

Elizabeth Joiner is an attorney with Constangy Brooks, Smith & Prophete, LLP, in its Jacksonville, Florida, office. Angelique Lyons is a partner in the firm's Port St. Lucie, Florida, office.