Best Ohio LGBT Discrimination Attorney Answer: Can my employer refuse to allow me to use the bathroom/restroom of the gender I identify with? Can transgender employees be forced to use a separate bathroom/restroom? Can I sue for wrongful termination if my boss fired me because I’m transgender and want to use the bathroom for the gender that I associate with?
One of the many employment discrimination issues dealt time and time again by the employment law lawyers in Spitz, The Employee’s Law Firm Blog is the scant few protections afforded to Ohio employees who are members of the LGBTQ (Lesbian, Gay, Bisexual, Transgender, and Queer) community. (See Can I Be Fired Because I’m Gay/Lesbian?; Can My Boss Fire Me Because I Am Homosexual?; Can I Be Fired For Marrying A Person Of The Same Sex?; Can My Job Fire Me Because Of My Sexual Orientation?; Is It Still Legal To Discriminate In Employment Against Homosexuals?; Can I Be Fired For Dressing Too Masculine?; Can I Be Fired For Gender Transitioning?). An issue that has proved to be controversial and sensitive to transgender individuals is one that a large group of individuals take for granted. Can I use the restroom? Perhaps, more realistically, can an employer stop me from using the restroom of the gender that I identify with?
The answer to this seemingly simple question has a not so easy answer. In general, pursuant to 29 CFR 1910.141 an employer is required to provide “…toilet facilities, in toilet rooms separate for each sex, shall be provided in all places of employment…Where toilet rooms will be occupied by no more than one person at a time, can be locked from the inside, and contain at least one water closet, separate toilet rooms for each sex need not be provided.”
However, this requirement for employers has not stopped individual employers and even state governments from attempting to keep transgender individuals from using the toilet facilities in which they identify as a gender.
In March 2016, North Carolina passed into law the “Public Facilities Privacy & Security Act“ or HB2 which requires individuals to use restrooms that correspond to the sex on their birth certificate rather than the gender that they identify with. However, this newly enacted law has come under heavy criticism (rightfully so) from both the public and private sector. As a result of their decision, North Carolina is facing significant lost business and financial opportunities as a direct result of the statute. The Williams Institute, a research institute with the University of California, estimated losses of up to $4.7 million dollars in revenue. PayPal and Deutsche Bank have both called off planned expansions in North Carolina costing the state nearly 700 jobs.
In response to this patently discriminatory law the Department of Justice (“DOJ“) issued a statement to North Carolina Gov. Pat McCrory that HB2 violates Title VII of the Civil Rights Act which prohibits discrimination against employees because of that worker’s race/color, religion, gender/sex, or national origin. The U.S. Justice Department gave North Carolina until this past Monday, May 9th, 2016, to change the discriminatory aspects of this law or face losing federal funding.
Rather than repeal the law, North Carolina filed a lawsuit against the federal government. The U.S. Justice Department responded by filing their own lawsuit. Attorney General Loretta Lynch said that the law is “state-sponsored discrimination against transgender individual, who simply seek to engage in the most private of functions in a place of safety and security-a right taken for granted by most of us.” Unless one side or the other intends to back down, it appears inevitable that this issue will be decided by the Supreme Court of the United States.
The good news is that, in general, the trend appears to be heading in the direction of greater protections for transgender individuals. Just last month, April 2016, the national shopping chain Target announced that employees and customers could use the restroom or fitting room that corresponds to their gender identity. Target’s non-discriminatory policy on restroom and fitting room use for employees falls closely in line with recent decisions by the Equal Employment Opportunity Commission (“EEOC”). (See Top Employment Law Attorney: Do Not File With The EEOC Without Doing This First; File With The EEOC Or Get A Lawyer? – Call The Right Attorney; Should I Get A Lawyer To Help Me File An EEOC Charge?; and Should I File With The EEOC On My Own? – Call The Right Attorney).
Last year the EEOC issued a decision that, while only binding on federal agencies, appears to have been adopted by some courts at the federal level.
In Lusardi v. Department of Army, et al., Lusardi was a transgender women hired as a civilian employee with the U.S. Army. In 2010, Lusardi began the process of transitioning her gender presentation. Around that time she met with her supervisors to discuss how she would handle her transition with her colleagues. Part of that meeting revolved around which bathroom Lusardi would use during her transition. Initially, Lusardi agreed that during her transition period she would use a single user restroom rather than the common women’s restroom. However, on several occasions the single user restroom was unavailable and on those occasions Lusardi chose to use the restroom associated with her identified gender. Lusardi’s supervisors approached her and insisted that she use only the single user restroom until she could show proof that she had undergone the “final surgery”. As a pretext for their position Lusardi’s supervisors stated that they thought Lusardi’s co-workers may be confused or uncertain about what it meant to be transgender, or embarrassed and/or afraid to share a restroom with a transgender co-worker. The EEOC found that:
Supervisory or co-worker confusion or anxiety cannot justify discriminatory terms and conditions of employment. Title VII prohibits discrimination based on sex whether motivated by hostility, by a desire to protect people of a certain gender, by gender stereotypes, or by the desire to accommodate other people’s prejudice…Allowing the preferences of co-workers to determine whether sex discrimination is valid reinforces the very stereotypes and prejudices that Title VII is intended to overcome. Thus, for instance, employers may not prohibit a transgender female worker from using the female bathroom based on speculation or stereotypes…
The EEOC decision in Lusardi has been adopted in decisions outside of the EEOC including the U.S. Court of Appeals for the Fourth District. On April 19, 2016 the U.S. Court of Appeals for the Fourth District issued a decision in the matter of G.G. ex rel. Grimm v. Gloucester County School Bd.
In G.G. ex rel. Grimm v. Gloucester County School Bd., a transgender boy (G.G.) had sought, and been given approval, to use the boys restroom at his school. G.G.’s birth assigned sex is female, but G.G.’s gender identity is male. After obtaining approval from the school administration the local school board passed a policy banning G.G. from using the boys restroom. G.G. had used the boys restroom for approximately seven weeks without incident before the Gloucester County School Board moved to stop G.G. from continuing to use the restroom of the gender he identified with. The county school board implemented several measures that they believed would create a “safer” environment for all students, allegedly including G.G., such as expanding the partition between urinals in male restrooms, adding privacy strips to the doors in restrooms, and constructing single-stall unisex restrooms that would be available to all students. In G.G’s case, the challenge comes under Title IX of the Education Amendment Act of 1972 which offers gender discrimination protection in educational programs. Title IX allows schools to provide separate restrooms and living quarters on the basis of sex. The United States District Court of Appeals was asked to reverse the dismissal of G.G’s suit by the district court. In granting a reversal of the lower court’s dismissal the United States District Court based its decision, in part, on a January 7, 2015 opinion letter by the Department Office for Civil Rights (OCR) which states:
All students, including transgender students and students who do not conform to sex stereotypes, are protected from sex-based discrimination under Title IX. Under Title IX, a recipient generally must treat transgender students consistent with their gender identity in all aspects of the planning, implementation, enrollment, operation, and evaluation of single-sex classes. (Emphasis added).
As mentioned above, this action was based on Title IX which deals with gender discrimination in an educational program. However, the logic in reaching that conclusion is nearly identical to the same argument being brought under Title VII of the Civil Rights Act of 1964, which provides for protection from gender discrimination in the workplace. Although not an express protection for transgender employees, it is a step in the right direction. Additionally, this decision by the Courts that has binding power on the lower courts that the early decision by the EEOC does not.
The road ahead is not certain but the path being forged by the DOJ and the EEOC is clear. Transgender individuals are entitled to a discrimination free workplace and should be entitled to basic human rights, such as using the bathroom.
If you are searching “I need a lawyer because I have was wrongfully fired or terminated today;” or “I have been discriminated against because I am …” gay, a lesbian, bisexual, or transgendered; or even think that you might need an employment law lawyer, then it would be best to call the right attorney to schedule a free and confidential consultation at 866-797-6040. Your employment rights are constantly changing and the best way to find out if you can sue your boss, manager, supervisor or employer for discrimination, harassment, or wrongful termination is to call Spitz, The Employee’s Law Firm and talk to its attorneys, who are experienced and dedicated to protecting the rights of employees just like you.
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