There are some other issues to keep in mind here as well. Make sure your company and the facilities it owns or manages are open and accommodating toward transgender people.
We’ve all seen hotheads whose Facebook feeds are full of angry, political posts. A manager with some kind of grudge against transgender people could easily expose the company to liability by “winging it” on the restroom access issue. The manager might tell transgender colleagues or tenants that they must bring in doctor’s notes proving that they have had surgery before being allowed to use this or that restroom — a huge no-no, according to OSHA. Or the manager might insist that the transgender person use a private bathroom in a back office somewhere. According to OSHA, singling out transgender employees in this way could embarrass them. This, in turn, could prompt them to avoid using restrooms at work and eventually lead to urinary tract infections or bowel and bladder problems. That’s a lawsuit in the making.
The worst scenario would be one in which the manager or other employees of the ownership/management team were openly hostile to a transgender person. This could be relatively subtle: After someone begins presenting as transgender, the manager might insist on continuing to say “John” rather than “Jane” or “he” rather than “she.” Or it could be overt, as in the case of insults, jeers, or mockery.
While the courts are all over the map with respect to transgender rights, the momentum appears to be toward their eventual recognition. A hostile work environment has long been understood as legitimate grounds for harassment and discrimination claims. Allowing this kind of thing to go on is extremely unwise.
That's why it's important to ensure the facilities are open and accommodating toward transgender people. If you already have a restroom-access policy for transgender employees, work with counsel to make sure it is in line with the newly published OSHA guidance. If your company lacks such a policy, have your legal team use those guidelines to draft one. You should also make sure your employees are well educated on these issues. Sensitivity training is in order: Everyone must understand the importance, not only of complying with the letter of your policy, but also with adhering to its spirit of fairness.
Veteran labor and employment attorney Joseph P. Paranac, Jr, is a shareholder in LeClairRyan based in the national law firm’s Newark, N.J., office. He can be reached at joseph.paranac@leclairryan.com.
Restroom Access For Transgender People Becoming A Contentious Issue
Facilities Should Accommodate Transgender Employees
