Don’t Flush Your Profits…
Transgender Bathroom Access and the Risk of Lawsuits
Jenni Contrisciani, MBA
According to a UCLA Law School study, there are approximately 700,000 transgender individuals in the United States. The U.S. Department of Labor’s Bureau of Labor Statistics estimates that approximately 59% of the US population is employed. The Human Rights campaign estimates a 14% unemployment rate for transgender workers, approximately double that for the national average. Assuming an equivalent age distribution of transgender individuals and accounting for increased unemployment means there are roughly 400,000 transgender employees in the United States. Statistica.com puts the number of Americans currently employed as 122.47 million people, so approximately one out of 306 employees are transgendered. If you filled the University of Michigan football stadium with workers (115,000) 375 of them would be transgender. Given rampant underemployment in the transgender community this figure may only be two thirds of this number in professional work place settings, however this still represents 200 people in the University of Michigan stadium example, and 264,000 people nationally.
Recent EEOC and court cases have clearly stated that transgender individuals must have access to the restrooms of the gender in which they identify. The Federal Government has issued clear directives to its departments and agencies to this effect. Companies that do not have a transgender restroom policy are at risk of lawsuits by employees, with the accompanying risk of monetary damages. Companies with identified transgender employees must have clear restroom policies adopted and published. Given that many transgender individuals are closeted, but may come out at any time and publicly assert they are transgender, means that even companies that do not have identified transgender employees need restroom policies.
The transgender community is well connected through social media, and aware of recent court cases. The “coming out” of celebrities such as Bruce/Caitlyn Jenner and Navy SEAL Christopher/Kristin Beck have raised the likelihood of transgender individuals openly identifying as their true gender and demanding equal rights under Federal EEOC guidelines and court precedent. Therefore a prudent employer needs to establish a transgender restroom policy.
But what about my other employees, employers will ask? The women in my company won’t be happy with “men” in their restroom! If existing experience is any indication, this will be a concern that will need to be addressed in your company. You may need training to both enact a transgender restroom policy and keep your employees happy. There are several key points to emphasize. Just as there are transgender women, who were or are, genetically male, there are also transgender men who are/were genetically female. Transgender men can appear with beards and well developed musculature. A transgender man in the women’s room would probably be more disturbing to women than a transgender woman, who dresses as a woman. Without a transgender restroom policy, forcing employees to use the restroom of their genetic gender may result in masculine transgender men in the women’s room, and transgender women wearing dresses, high heels in the men’s room and applying make-up at the sink.
Second, as with any restroom situation, the company must state that it will police any inappropriate behavior. While there have been no documented cases of transwomen acting inappropriately in women’s restrooms, the red herring of sexual perversion and inappropriate behavior is often raised. In addition to reassuring employees that there have been no cases of inappropriate behavior in restrooms documented to date, company policy is still in effect if there ever was.
Third, most modern restrooms contain a sink area and individual stalls. Aside from shoe size, there really isn’t any way to discern a transgender woman versus a genetic woman in the stall next door, assuming proper sit-down behavior by the transwoman. Even so, there is privacy in bathroom stalls. If necessary, stalls can be further privatized to reassure any individual.
Fourth, it should be addressed that transgender people are desperately wanting to blend in with the gender of their choice, so the only interaction a genetic woman would likely have with a transwoman in the restroom would be if she asked her at the sink how she learned how to do her makeup so well. Again, there have been no incidences of abnormal behavior in professional settings or the multiple school settings where transgender individuals are allowed to use the restroom of their gender identity.
Of course, change is hard and employees may come with very fixed and predetermined viewpoints. This is where training can be effective in dispelling many of the myths and misperceptions of transgender individuals. Not only can you more likely retain a talented transgender employee, but a well stated and public restroom policy may attract talented transgender individuals.
If you do not have a policy in place currently, it would be wise to do so and would demonstrate foresight and fiscal responsibility to do so.
Jenni Contrisciani, MBA
Posted on December 7, 2015, in Civil Rights, Management & Business, Uncategorized and tagged bathroom, company policy, EEO, EEOC, Jenni Contrisciani, policy, Transgender. Bookmark the permalink. Leave a comment.