Chicago Mayor Rahm joined the State of Washington in sending the message to the State of North Carolina that the partial repeal of House Bill 2 is not enough to lift current travel bans to the state. Last week, Emanuel said that the City’s employees will not travel to North Carolina for non-essential City business. This week, the Chicago City Council will vote on a resolution to reaffirm the City’s original travel ban. The resolution is expected to pass easily.
The original version of House Bill 2 required transgender persons to use the restroom and changing facilities that corresponds to the gender on their birth certificates. The recently amended law removes the requirement to use the bathroom facility that corresponds to gender on one’s birth certificate in state facilities. However, it placed a three (3) year prohibition on municipalities enacting their own anti-discrimination ordinances. Therefore a municipality, if it so chose, could still discriminate against transgender persons. The amended law also removed a prohibition against suing the state for discrimination based upon transgender status or sexual orientation discrimination. Prior to House Bill 2, those who felt that they were discriminated against based upon sexual orientation or transgender status had three (3) years to file suit in state court. That has now been reduced to one (1) year under the amended law.
The City of Chicago joins other states and municipalities in saying that the amendments do not go far enough to protect their employees traveling to those states. Emanuel specifically said that the City of Chicago wants to insure the all of its employees are safe when traveling on City business.
The Occupational Health and Safety Administration (“OSHA”) determined under the Obama Administration that laws that require transgender individuals to use the bathroom facility corresponding to the gender on their birth certificates are a health threat. The agency found that many transgender people would go an entire work day without using the restroom because they felt uncomfortable in a restroom that did not correspond to their affirmed gender. It is this concern regarding the health of their employees that has motivated many states and municipalities, including Chicago, to continue to ban travel to North Carolina.
The City’s decision raises an interesting issue of employee health and safety for other municipal employers who require travel. Is it possible that requiring travel to a municipality or state that has discriminatory laws in place could subject the employer to liability? This is something that all employers should be concerned about. It may also be worth looking at policies that regulate business travel. As always, feel free to contact an Ancel Glink labor and employment attorney if you have questions.