From Bathrooms To Body Art: Emerging Issues In Employment Law
It's hard out here for an employment lawyer.
In-house lawyers often wear many hats, especially at smaller companies with modest legal departments (and budgets). One common hat: head of human resources. Given the web of complex federal and state laws regarding labor and employment, tasking a lawyer with this function makes sense. But the changing landscape of employment law can make serving in this role challenging, especially if the in-house lawyer must juggle HR duties with other responsibilities.
In-house counsel with an interest in employment law flocked to “From Body Art to Unisex Bathrooms: Changing Workplaces, Changing Employment Laws,” an enlightening panel at the 2016 Annual Meeting of the Association of Corporate Counsel (ACC). It featured the following speakers:
- Oswald Cousins, Partner, Miller Law Group
- Lisa Hamasaki, Partner, Miller Law Group
- Katherine Kettler, Director, HR Legal Investigations, Intel Corporation
- David Warren, Assistant General Counsel, MetLife
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The helpful and pragmatic panel proceeded by way of various hypotheticals. In that spirit, I’m going to structure this story in a Q&A format.
Issues of gender and sex are, as a legal matter, increasingly tricky. Even the terminology is changing; words like “transvestite” and “hermaphrodite” are no longer acceptable, for example. What should I do if I make a mistake in referring to or addressing a particular employee?
Apologize, educate yourself (lots of online resources are available through organizations like the Human Rights Campaign), and try to do better next time. Make sure that your corporate guidelines, handbooks, and other resources are up to date. Communication and keeping people comfortable are key. It’s totally okay to ask employees how they would like to be addressed (e.g., which gender pronouns they prefer).
Title VII prohibits discrimination in the workplace based on sex. It would clearly ban, for example, discriminating against an employee because she’s a woman. But what about requiring this employee to present herself in a more feminine matter? That’s not illegally discriminating against her because she’s a woman, it’s just asking her to improve her self-presentation — right?
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Wrong. That’s not allowed under Title VII. In Price Waterhouse v. Hopkins (1989), the Supreme Court held that gender stereotyping is actionable as sex discrimination. The Hopkins case involved a woman who claimed that she was rejected for partnership at PWC because she didn’t follow a supervisor’s advice to “walk more femininely, talk more femininely, dress more femininely, wear make-up, have her hair styled, and wear jewelry.” She prevailed before SCOTUS.
Title VII prohibits sex discrimination — but what about sexual orientation? Does that count?
Courts are split on whether Title VII applies to sexual orientation. But the EEOC takes the position that Title VII bans discrimination based on gender identity or sexual orientation, and a number of states and localities, including New York and California, prohibit discrimination based on sexual orientation. So it’s safest to proceed on the assumption that sexual-orientation discrimination is banned, especially if you have employees in different jurisdictions.
What about gender dysphoria (formerly known as gender identity disorder)? Can a transgender person sue for employment discrimination?
This issue is still being hashed out by the courts. The position of the EEOC is that discrimination based on transgender status is sex discrimination in violation of Title VII.
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What about the Americans With Disabilities Act and gender dysphoria?
There is a carveout in the ADA for gender dysphoria; the Act provides that “transsexualism” is not a disability for purposes of the ADA. But this is being challenged in litigation, and some of the panelists predicted that the carveout could be altered or eliminated in the future.
Let’s discuss the current hot issue of bathrooms for transgender individuals. Imagine you’re the lawyer for a company with a transgender employee, Julia. Your offices have men’s rooms, women’s rooms, and a single-user restroom. Should you (a) tell Julia that she should use the single-user restroom, (b) require her to provide medical certification before letting her use the women’s room, or (c) tell her she can use the restroom that corresponds to her gender identity?
The correct answer is (c). An employer can’t require a transgender person to use a single-user facility without also giving them the option to use the bathroom that corresponds with their gender identity. You also can’t require medical documentation. If another employee objects to Julia using the women’s room, you can suggest to the complaining employee that they use the single-user facility. For more info, see the EEOC fact sheet on bathroom access rights for transgender employees.
Can an employer have unisex or gender-neutral restrooms (a la Ally McBeal)?
Yes. According to the Occupational Safety and Health Administration (OSHA) best practices, it’s fine to have “multiple-occupant, gender-neutral restroom facilities with lockable single occupant stalls.” You just can’t prevent a transgender person from using the restroom that conforms to their gender identity.
What about Title VII and religious belief?
Title VII prohibits discrimination based on religion. The big issue in these cases is often accommodation; as the EEOC explains, an employer can decline to accommodate “an employee’s sincerely held religious beliefs or practices [if] the accommodation would impose an undue hardship (more than a minimal burden on operation of the business).”
It also violates Title VII for an employer to refuse to hire an applicant because the employer wanted to avoid having to accommodate an employee’s religious practice. That was the holding of the Supreme Court in the recent case of EEOC v. Abercrombie & Fitch (in an opinion authored by the late Justice Antonin Scalia). Abercrombie involved the racy retailer’s refusal to hire a Muslim woman because of her religious practice of wearing a hijab.
Jeez, it sounds like an employer can’t do anything. What about a workplace dress code that prohibits having visible tattoos, which some people (read: customers) find off-putting?
Are the tattoos religious in nature? If so, then that might be a problem. See EEOC v. Red Robin.
Wow. Well, can an employee then get around a workplace policy banning visible tattoos or certain types of body piercings by claiming to belong to a “Church of Body Modification” (CBM)?
Okay, that’s a bit much — and an employee trying to take such a position lost in the First Circuit case of Cloutier v. Costco Wholesale Corp. But note that she didn’t lose because the court viewed the “Church of Body Modification” as a joke; as pointed out by the court, the CBM was founded in 1999 and claims approximately 1,000 members (check out its website, which denies that the church is really just “a loophole to keep people from being fired from their job”). The court assumed the legitimacy of the CBM for the sake of argument but granted summary judgment to Costco because total exemption from the policy, the only accommodation that Cloutier would accept, “would impose an undue hardship on Costco.”
So the upshot of all this seems to be “employer loses and employee wins, unless employee is totally unreasonable” — is that correct? And if so, how is that fair to employers, or to in-house lawyers trying to represent them?
It’s certainly true that some areas of employment law are moving in the direction of plaintiffs, and employers and their counsel need to be more careful than ever. In many cases, the safest approach for an employer is to accede to an employee’s request, especially if that request is minor or reasonable; that’s one way of avoiding the specter of litigation.
At the end of the day, though, in-house lawyers who handle employment law shouldn’t lose sleep over these matters. They are all issues that reasonable employers and employees, acting in good faith and with common sense, should be able to work out.
2016 ACC Annual Meeting [Association of Corporate Counsel]
David Lat is the founder and managing editor of Above the Law and the author of Supreme Ambitions: A Novel. You can connect with David on Twitter (@DavidLat), LinkedIn, and Facebook, and you can reach him by email at [email protected].
