Wednesday, May 11, 2016

Bathrooms Are the Tip of the Iceberg

It seems like only yesterday that Caitlyn Jenner made her debut on television and the cover of Vanity Fair. A scant year later, North Carolina has put itself on center stage over issues of who can use which gender’s restroom. Lawsuits were filed by both the U.S. Department of Justice, seeking to stop enforcement of the state law requiring individuals to use the bathroom that correlates to the gender on their birth certificate, and the State of North Carolina’s secretary of public safety claiming that the DOJ was overreaching when it warned that the state law violates the Civil Rights Act of 1964. The issue is likely to be ultimately decided by the Supreme Court, costing both parties hundreds of thousands of dollars to litigate.

As controversial as this law is in North Carolina and other states, it is just the opposite from a legal standpoint in Illinois, where the Illinois Human Rights Act prohibits discrimination based on gender identity. Despite that fact, people in general maintain mixed feelings about gender identity issues such as bathroom use. A recent Reuters poll found that 44% of those polled thought people should be required to use the bathroom that corresponds to an individual’s gender at birth, while 39% said they should be used according to their gender identity.

What this means in Illinois, among other things, is that employers still face a significant hurdle in recognizing and addressing transgender issues in their workplace as well as in dealing with patrons or the public, despite laws prohibiting discrimination.  Adoption of policies which govern these issues in the workplace are essential for employers. And the issues go well beyond which bathrooms do people use. A review and revision of current policies that may inadvertently discriminate include the following issues:
  1. Anti-discrimination;
  2. Bathrooms/locker rooms/changing areas;
  3. Health insurance coverage;
  4. Privacy concerns;
  5. Names by which individuals are addressed;
  6. FMLA and ADA benefits;
  7. Dress codes/uniforms.
The labor and employment attorneys at Ancel Glink can review your policies and train your employees on best practices in complying with transgender recognition and non-discrimination. Contact Margaret Kostopulos at 312-604-9106 or at or Bob McCabe at 847-856-5432 or to find out more information on keeping your workplace and business in compliance with these rapidly evolving laws.