September 2014 Newsletter
Can a Transgender Individual Use the Restroom of Their Choice?
Most of the time when a company has a transgendered individual this question becomes a matter of contention. While your other employees may express concern to you, it is important to remember a golden rule of employment law:
“When faced with an employment decision problem treat that employee the same way you treat all other employees.”
For almost all types of discrimination the courts will look to see two things. First, what you normally do in these circumstances. Then second, how you handled the present situation.
For this issue the short answer is that you should allow your employees to use the restroom that corresponds with their full-time gender presentation, regardless of biologic or physical attributes.
This is what a court would say you do for all other employees. While you may believe that you have only let employees use the restroom that corresponds to their physical attributes, the truth is that you haven’t. You do not actually know the physical characteristics for all of your other employees (and if you do your company is some serious trouble). Rather, you just assume they have the parts attributable to the gender they purport.
Again, the right thing to do here is to let your employees use only the restroom of the gender they present. You should not let a transgender employee use both bathrooms at their leisure, because you wouldn’t let anyone else do that.
There are a few other important issues that you must also be aware of in this situation:
Human Resource Solutions will be glad to answer any questions you may have regarding this, or any other, employment issue you are having. Contact Us!
Most of the time when a company has a transgendered individual this question becomes a matter of contention. While your other employees may express concern to you, it is important to remember a golden rule of employment law:
“When faced with an employment decision problem treat that employee the same way you treat all other employees.”
For almost all types of discrimination the courts will look to see two things. First, what you normally do in these circumstances. Then second, how you handled the present situation.
For this issue the short answer is that you should allow your employees to use the restroom that corresponds with their full-time gender presentation, regardless of biologic or physical attributes.
This is what a court would say you do for all other employees. While you may believe that you have only let employees use the restroom that corresponds to their physical attributes, the truth is that you haven’t. You do not actually know the physical characteristics for all of your other employees (and if you do your company is some serious trouble). Rather, you just assume they have the parts attributable to the gender they purport.
Again, the right thing to do here is to let your employees use only the restroom of the gender they present. You should not let a transgender employee use both bathrooms at their leisure, because you wouldn’t let anyone else do that.
There are a few other important issues that you must also be aware of in this situation:
- Currently there are no federal laws that include specific protection against discrimination for transgendered employees, cross dressers or as to gender identity. However, there are some state laws and local ordinances that may offer such protection.
- Even though your location may not have protection for transgendered employees do NOT provide them with a special bathroom because of their status. This singling out would put your company at a high risk of litigation.
- Do not use “other employee complaints/discomfort” as a reason to treat any employees differently. This is a good rule for any employment issue your company may have.
- In any sensitive area, such as this, it is important to consult with experts in that area. Whether that is HRS, or a local attorney, these small decisions could end up costing you immensely if you do not analyze the issue properly.
Human Resource Solutions will be glad to answer any questions you may have regarding this, or any other, employment issue you are having. Contact Us!
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