Quirky Questions

Real Life Employment Law

Quirky Question #286: Best Practices on Restroom Access and Terminology for Transgender Employees

Question: There has been a lot of news coverage lately on restroom policies related to transgender employees.  Can you provide some guidance on how to structure our restroom-use policies to be both lawful and respectful of all employees?  More generally, can you help me understand the appropriate, respectful terminology in this area?  I certainly don’t want to offend anyone on purpose, and I also don’t want to do so by mistake.

Answer: You are certainly correct that there has been a lot of heated commentary and political debate surrounding this subject.  Fortunately, the legal answer to your question about restroom policies is pretty well-settled.  In short, if employers have bathrooms that are segregated on the basis of sex, employers should allow employees to use the restroom associated with their gender identity, and should not require employees to use the restroom associated with their sex assignment at birth.

Before we get there, though, let’s clarify some terminology. Using correct terminology is important not only to be respectful to all employees, but also because the EEOC has held that a company can be liable if a supervisor deliberately uses improper or discriminatory terminology when addressing or referring to a transgender employee. See Lusardi v. McHough, 2015 WL 1607756 (EEOC Apr. 1, 2015).  “Transgender” is an umbrella term used to describe persons whose gender identity or gender expression differs from what is typically associated with the sex they were assigned at birth.  GLAAD, GLAAD Media Reference Guide – Transgender Issues (2016); American Psychological Association, Answers to Your Questions about Transgender People, Gender Identity, and Gender Expression, p. 1 (2014).

The term “transgender” is an adjective and not a noun (e.g., “he is a transgender male” generally is acceptable, while “he is a transgender” or “he is transgendered” generally are not). GLAAD, GLAAD Media Reference Guide – Transgender Issues (2016).  Transgender individuals may also prefer to be referred to as “transsexual” or “trans,” though “transgender” generally is the preferred term and should be used unless specified otherwise by the individual. Id.  “Transvestite” and “tranny” generally are considered derogatory terms and should be avoided. Id.   The terms “biological” or “genetic” also should be avoided (e.g., “she is biologically male” or “he is a genetic female”) in favor of “sex assigned at birth” (e.g., “her sex assignment at birth was male” or “he was designated female at birth”).  It is also important to remember that a person’s gender identity or gender expression is not necessarily related to the person’s sexual orientation.  A transgender person may be straight, lesbian, gay, bisexual, or asexual.   Id.

“Gender identity” and “gender expression” are more specific terms. “Gender identity” refers to a person’s internal sense of being male or female (or, in some instances, both or neither, to varying degrees).  “Gender expression” refers to the way a person communicates gender to others, including through clothing, behavior, mannerisms, hairstyles, names, voice, or other body characteristics.  It is important to remember that the subjective way in which one interprets another’s gender expression may not necessarily match the person’s gender identity.  When referring to a transgender individual, always use the person’s chosen name and his/her chosen pronoun (i.e., “he” or “she”).  GLAAD, GLAAD Media Reference Guide – Transgender Issues (2016).  Whenever possible, ask transgender people what pronoun they would like you to use. If it is not possible to ask for a pronoun preference, use the pronoun associated with the person’s gender expression. Id.  Never put quotation marks around a person’s chosen name or pronoun when writing, and don’t use “air quotes” when speaking. Id.  Also, whether a person has undergone (or even begun) treatment (e.g., counseling, hormone therapy, or sex reassignment surgery) should not be a consideration in recognizing a person’s gender identity. See, e.g., Lusardi, 2015 WL 1607756, at *8; GLAAD, GLAAD Media Reference Guide – Transgender Issues (2016).

As we’ve noted in response to a previous question, Title VII generally protects transgender employees from discrimination in employment.  But there are inherent privacy and safety considerations concomitant with sharing a restroom or locker room with a coworker that are not present when, for instance, sharing an office or cafeteria with a coworker, regardless of either person’s gender characteristics.  Indeed, Title IX–which (like Title VII) prohibits discrimination on the basis of sex, but applies only to educational institutions that receive federal funding–recognizes that institutions may have “separate toilet, locker room, and shower facilities on the basis of sex.” See 20 U.S.C. § 1686; 34 C.F.R. § 106.33.

Based mainly on these privacy and safety concerns, the Minnesota Supreme Court held in 2001 that an employer’s policy requiring employees to use the bathroom associated with their sex assignment at birth (which the court referred to as “biological gender”) did not run afoul of Minnesota state anti-discrimination laws. See Goins v. W. Grp., 635 N.W.2d 717 (Minn. 2001).  While Goins technically remains good law in Minnesota, its holding was based entirely on state anti-discrimination laws and is no longer consistent with recent federal decisions and guidance.  Because most employers have to comply with both state and federal law, you are safer – and being more respectful – following the federal rule and allowing employees to use the restroom associated with their gender identity.  You should not require employees to use the restroom associated with their sex assignment at birth.

Of particular relevance is a recent decision from the Fourth Circuit Court of Appeals. In that case, a transgender boy (an individual designated female at birth, but who identifies and/or lives as a male) sought to use the boys’ restroom at his elementary school, which the school district initially allowed. Grimm v. Gloucester Cnty. Sch. Bd., 822 F.3d 709 (4th Cir. 2016).  But after receiving numerous complaints from concerned parents, the school board held two public meetings to discuss the issue.  After receiving input, the school board constructed individual, private bathrooms that all students were allowed to use, and then segregated shared restrooms based on sex assignment at birth.  The student sued, arguing the school’s refusal to allow him to use the shared restroom associated with his gender identity constituted discrimination on the basis of “sex” in violation of Title IX.  As noted above, Title IX allows institutions to have “separate toilet, locker room, and shower facilities on the basis of sex.”  Thus, the sole issue was whether “sex” as used in the exception for separate restrooms “on the basis of sex” meant (a) sex assignment at birth or (b) gender identity.  In large part deferring to an interpretation from the Department of Education, the Fourth Circuit Court of Appeals held that “sex” at least included “gender identity,” such that segregating restrooms on the basis of sex assignment at birth (and thereby prohibiting transgender students from utilizing the restroom associated with their gender identity) is impermissible under Title IX. Id.

One argument the school raised in Grimm was that it needed to balance the privacy concerns of all students (including non-transgender students), and that it satisfied Title IX by providing separate, individual facilities for anyone uncomfortable using the restroom associated with their sex assignment at birth.  The court rejected this argument, holding that the denial of the right to use the shared restroom associated with a person’s gender identity was discriminatory regardless of whether individual restrooms were also provided. Id.

While the Grimm decision directly applies only to educational institutions subject to Title IX, there is little doubt its logic applies to other anti-discrimination laws, including Title VII.  First, Grimm’s major holding simply defined “sex,” a term that is used throughout anti-discrimination statutes.  Thus, its definition of “sex” as including gender identity appears to be equally applicable to all anti-discrimination laws that reference “sex,” including Title VII.  Indeed, the EEOC has stated that Title VII requires that if employers provide segregated bathrooms, employers must allow employees to use the bathroom associated with their gender identity. Lusardi v. McHough, 2015 WL 1607756 (EEOC Apr. 1, 2015).  Likewise, OSHA has issued a bulletin stating that its Sanitation standard (1910.141) requires the same. See OSHA, A Guide to Restroom Access for Transgender Workers, p. 2 (2016).  The Department of Justice agrees. See DOJ Ltr. dated May 13, 2016.

Many states and territories have enacted laws or published guidance that specifically state employees must be allowed access to restrooms based on their gender identity. These states and territories include California, Colorado, Delaware, Washington D.C., Iowa, Vermont, and Washington.

As an alternative to shared restrooms, employers may wish to provide single-occupancy, gender-neutral facilities. Employers can comply with federal and state anti-discrimination laws by exclusively providing these single-occupancy facilities (i.e., by doing away with shared facilities altogether), or by providing them as an alternative to shared facilities that are segregated on the basis of gender identity.  As noted above, however, providing single-occupancy facilities as an alternative to shared facilities segregated on the basis of sex assignment at birth is not permissible.

So far, cases and guidance have been very careful to limit application of these principles to shared restrooms and toilet facilities. See, e.g., Grimm, 822 F.3d at 734 (“[T]he majority . . . cabins its entire discussion to ‘restroom access by transgender individuals.’”) (dissent).  The issue of segregated locker rooms and shower rooms–where privacy concerns may be even greater than for restrooms and toilets–is slightly less clear.  However, the logic of Grimm and related guidance appears to apply to the same extent to these facilities.  Thus, for those employers who provide locker rooms and showering facilities to employees, employers should have either (1) single-occupancy, gender-neutral facilities; (2) shared facilities segregated on the basis of gender identity; or (3) both.

The world of workplace discrimination law is constantly changing. Employers must be vigilant to stay ahead of these changes, both to comply with applicable laws and to ensure that all employees are treated fairly and respectfully.

Quirky Question #285: Potholes on the Ethical “High Road”

Question:  We learned that some of our employees may have been engaging in unethical, and perhaps even illegal, behavior.  We don’t tolerate this, so we hired a law firm to conduct an investigation, and based on the results of that investigation, we terminated the employees.  The terminated employees were high-profile employees, and we told some people why they were fired.  Also, when we fired the employees, we briefly referenced the investigation, but didn’t provide them with any substantive information about it.  Do you see any problems with that?

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Quirky Question #284: If a tree falls in the forest and no one hears it, can you still unlawfully retaliate against it?

Question: One of our male supervisors wants to fire a female employee who complained that he was sexually harassing her. The harassment allegations appear to have some substance: he asked her for pictures of herself in a bikini; told her to “stay off [her] knees,” which she viewed as sexual innuendo; and told her that her regulation length shorts were too short. Also, the grounds for termination (driving a vehicle with the door open, creating a safety hazard) have been overlooked in other situations. We are a little worried that she will claim we are retaliating against her for the sexual harassment complaint.  But the supervisor says he never heard about the sexual harassment complaint.  So, if he didn’t know about the complaint, he could not possibly retaliate against her on the basis of that complaint, right?  You could get this case thrown out before it ever went to trial, right?

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Quirky Question #283: They Stole Our Stuff, Can We Sue?

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Question: My company recently terminated an employee, and we are very worried she accessed her email inappropriately in the days before she was fired. The timing of it all is … well, quirky.

Here’s what happened: The employee’s manager met with her on a Friday and informed her that her performance was not acceptable, even after several earlier warnings to improve.  The manager told the employee to go home early and return to work first thing Monday to meet with the manager and the manager’s supervisor.  The supervisor, manager, and employee met as planned on Monday and the employee was terminated.  Later that day, however, our IT folks reviewed her account and determined she had accessed her email dozens of times on Saturday and Sunday – there are no “sent messages” in her account, so we figure that she was printing off e-mail and maybe contacts because she saw the writing on the wall about the Monday meeting.

Our policies allow employees to access email from home – but we can’t think of any reason why she would have done so over this weekend and IT said she hadn’t logged in from home for at least six months. Needless to say, the timing is very suspicious, and we’re thinking about suing to find out what she did when she logged in.  Can we?

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Quirky Question #281: Deploying the DTSA

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Question: We believe our former employee recently stole some of our trade secrets and went to a competitor.  Can we rely on the Defend Trade Secrets Act to bring suit in federal court?

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Quirky Question #280: Minneapolis Sick and Safe Time Ordinance

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Question: We are an employer that has a few employees working in Minneapolis, and just heard about a new law requiring employers to provide paid sick leave in Minneapolis. Will this apply to us? What are the requirements? And how long do I have to prepare?

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A New Question Every Week

Nearly every day, executives and managers, and the in-house counsel and Human Resources professionals who work with them, are confronted with unanticipated questions regarding the workforce. Just when they think they have "seen it all," along comes a new and often stranger scenario involving an odd twist to an area they thought they fully understood. These individuals often find themselves back at square one when trying to construct an appropriate response and devise a creative solution to the problem presented. Sometimes these "Quirky Questions" can be resolved easily; other times, they implicate practical and legal issues that are not immediately apparent. This Quirky Questions blog addresses these unanticipated employment questions.

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