REPORT FROM THE U.S.—The debate over transgender rights continues to make headlines, most recently over public restroom access in North Carolina. As this fight heats up, employers might wonder what accommodations they need to make for employees who are transitioning or who have transitioned from one gender to another.
The U.S. Equal Employment Opportunity Commission has taken the position that while Title VII of the Civil Rights Act of 1964—which prohibits discrimination against certain classes—doesn’t specifically mention transgender people, that class should receive protection against gender-based discrimination, said Sylvia St. Clair, an associate with Faegre Baker Daniels.
“Whether it’s in North Carolina or elsewhere, the EEOC has made it a priority for them to file lawsuits on behalf of transgender employees feeling forced to use certain sanitary facilities,” she said.
Reasonable accommodations
If a hotel has existing restrooms that are separate for men and women, there’s nothing hoteliers need to do to change that, said Scott Schneider, partner with Fisher Phillips, as employees should use the facilities with which they identify.
The political debate has set off a firestorm, he said, but the reality is hotels have existed for generations with transgender guests and employees.
“Now is not the first time we’ve had transgendered guests at hotels,” Schneider said. “Nobody really inquired. If you looked like a woman and went to the bathroom, no one asked if they were really a woman.”
Some worry that allowing transgender people to use the restrooms for the gender they identify with creates a loophole for some men to pretend to be women to get into the women’s restroom, Schneider said. While that could happen, he said, people could have already done that anyway.
“I have seen no evidence of that in reality,” Schneider said. “It’s purely anecdotal Facebook fear mongering, at least in my opinion.”
One reasonable alternative accommodation would be to offer all employees a gender-neutral or single-occupancy restroom, St. Clair said. However, the EEOC has said mandating that transitioning employees must use the unisex facility could be a discriminatory practice.
The U.S. Army recently found itself as the defendant in a lawsuit after it required a transgender civilian employee to use the single-stall bathroom while transitioning. The plaintiff felt isolated and segregated from everyone else, St. Clair said.
“That would be a policy you would not want to have in your hotel,” she said.
While having a gender-neutral facility is an option, adding a new restroom can be a costly project. St. Clair said there shouldn’t be expectations that a company would renovate its entire property to add gender-neutral facilities. But she believes that addition should be considered during a new build or renovation project.
Having a gender-neutral restroom could also be helpful for guests at smaller properties where there aren’t separate facilities for employees only, she said. A mother or father might be more inclined to take their children into the single occupancy restroom for the added privacy.
Reviewing policies
St. Clair believes it’s always a good idea for employers to review and remind employees about anti-harassment policies. She said employers need to take the stance that harassment based on any characteristic won’t be tolerated, and they need to create an environment in which an employee can speak with managers if they are uncomfortable.
It’s as much a help to the employer as the employee to have an open communication policy with employees, St. Clair said, because the happier employees are, the better they’ll serve guests. The pertinent issue is for employers to make sure their employees feel comfortable and safe, she said.
“Having an open dialogue makes a better operation overall,” she said.
There can still be certain expectations for how employees dress, Schneider said. While hotel companies might be able to set gender-specific dress codes, he said, if an employee is in transition, it would be safe to require that employee to follow the rules for the gender with which that employee identifies. Another option is to require a gender-neutral uniform.
“The expectation, regardless of the expectation of gender, is the dress is to be professional,” he said.
At this point, whether transitioning employees will be covered by the Family Medical Leave Act is unknown, Schneider said. He added he hasn’t seen that come up yet, but he wouldn’t feel comfortable categorically rejecting an employee request for a day off because of issues with gender dysphoria, which is the condition of feeling one’s gender identity is opposite to their biological sex.
Creating a welcoming environment
Policies and legal requirements aside, the main question employers should ask themselves is whether they are going to be inclusive to every qualified applicant, said Chuck Conine, founder of Hospitality HR Solutions.
It is important for employers to speak with an employment lawyer familiar with the legal landscape of the state or states in which they operate, he said. It’s not necessarily about making changes or whether the policies include LGBT employees, but making sure that the policies align with the relevant laws.
However, it’s also important to value employees and allow them to develop to their fullest potential, he said, as those who follow this path are likely to remain on the team longer than those who don’t receive these considerations.
“The more we place this in a context of empowering employees to be the people they really are rather than people we want them to be, there’s just limitless potential when the employees are treated that way rather than forced to stand a certain way and have canned phrases that sound like canned phrases and everything else related to conforming,” he said.
It’s a simple and obvious approach, Conine said, and it will resonate with GMs, especially those who have been around for a while. They see the difference in staffs who have to follow all these rules, policies and procedures and everything else that carries the day versus a more collegial and collaborative work environment.
“In a place like that, there’s no room for any of the disparities and unequal treatment, whether for transgender employees or anyone else who is different,” he said.