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Birmingham Bar Association Bulletin Fall 2015

Employment Law Sandra B. Reiss, The Reiss Law Firm LLC Caitlyn Jenner continued from page 22 to work in a manner consistent with how they live the rest of their daily lives, based on their gender identity. Restricting employees to using only rest rooms that are not consistent with their gender identity, or segregating them from other workers by requiring them to use gender-neutral or other specific rest rooms, singles those employees out and may make them fear for their physical safety. Bathroom restrictions can result in employees avoiding using rest rooms entirely while at work, which can lead to potentially serious physical injury or illness.18 The Guidance also included the following: “in April 2015, the EEOC ruled that a transgender employee cannot be denied access to the common rest rooms used by other employees of the same gender identity, regardless of whether that employee has had any medical procedure or whether other employees may have negative reactions to allowing the employee to do so. The EEOC held that such a denial of access constituted direct evidence of sex discrimination under Title VII.19 While this is merely a guide, employers would be wise to follow it since it is already being used by the EEOC to find evidence of discrimination and will surely be referenced in lawsuits and judicial opinions. V. Suggested Practices Many employers may already have transgender employees working for them without their knowledge, but in all cases, it is wise not to make decisions based on stereotypes – that advice serves the employer well for any protected category. While case law is developing monthly on this issue, following these suggested practices should provide both the employer and employee with a fair workplace. An employer should allow a transgender employee to dress as the gender that he or she identifies as, while still complying with dress codes or workplace standards. An employee requiring medical procedures for a transition is most likely to have a “serious health condition” consistent with the Family and Medical Leave Act (“FMLA”) and may even be considered disabled by the Americans with Disabilities Amendment Act (“ADAAA”). An employer should find out which pronoun the employee prefers and utilize that pronoun in all further discussions and if the employee begins to use a different name consistent with his or her identity, this should be changed on all forms, email identifiers, websites and other tools which identify the employee. G ENDNOTES 1 A 2014 study revealed that forty-one percent of transgender people attempt suicide, nine times the national rate. Reyes, Emily Alpert, “Transgender study looks at ‘exceptionally high’ suicide-attempt rate” Los Angeles Times January 28, 2014| 2 Burn, Shawn M, Ph.D., “Understanding the Changing Landscape of Gender Identity” Psychology Today, March 2014, www.psychologytoday. com/blog/presenece-mind/201403/ understanding-the-changing-landscape-gender identity. 3 Id. 4 “The World’s First Transsexual Man”, 71 Polari , last reviewed October 2013, http;//www. gendercenter.org/au/resources/polare-archive 5 Christine Jorgensen. (2015). The Biography. com website. Retrieved 01:05, Jun 22, 2015, from http://www.biography.com/people/christine jorgensen-262758. 6 Lewis, Tanya, “Bruce Jenner’s Transition: How Many Americans Are Transgender?”  http://www.livescience.com/50635- bruce-jenner-transgender-prevalence.html, April 27, 2015 7 The Editorial Board, “The Struggle for Fairness for Transgender Workers” The New York Times July 9, 2015 8 See, Macy v. Department of Justice, EEOC Appeal No. 0120120821 (April 2012). “What You Should Know about EEOC and the Enforcement Provisions for LGBT Workers” U.S. Equal Employment Opportunity Commission. 9 http://www.eeoc.gov/eeoc/newsroom/wysk/ enforcement_protections_lgbt_workers.cfm 10 Id. 11 In June 2015, the EEOC revised and published an eight-page guideline on LGBT rights in the federal workplace entitled, “Addressing Sexual Orientation and Gender Identity Discrimination in Federal Civilian Employment; A Guide to Employment Rights, Protections and Responsibilities” which can be found at the EEOC.gov website. 12 http://www.eeoc.gov/eeoc/newsroom/release/ 4-13-15.cfm 13 These article do not address the numerous education cases, medical cases or changes in immigration and incarceration laws. 14 The Editorial Board, “The Struggle for Fairness for Transgender Workers” The New York Times July 9, 2015 15 Beyer, Dana and Weiss, Jillian T. “New Title VII and EEOC Rulings Protect Transgender Employees” Transgender Law Center, http://transgenderlawcenter.org/wp-content/ uploads/2014/01/TitleVII-Report-Final012414. pdf 16 Id. 17 “Best Practices, A Guide to Restroom Access for Transgender Workers” Occupational Health and Safety Association, www.osha.gov/ Publications/OSHA3795.pdf 18 Id. 19 Id. (referencing  Lusardi v. McHugh, EEOC Appeal No. 0120133395, dated April 1, 2015.) 36 Birmingham Bar Association


Birmingham Bar Association Bulletin Fall 2015
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