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DALLAS — The retail and hospitality industries must familiarize themselves with the laws regarding transgender people and how those laws affect their workers in the wake of changes under the Trump administration, according to experts speaking at the 2018 CLM & Business Insurance Retail, Restaurant & Hospitality Conference in Dallas on Thursday.
“By definition, hospitality should be all-welcoming, but there is a wave that’s coming, a wave of claims and lawsuits. There are 1.7 million individuals in the U.S. that identify as being transgender ... despite this, the law in this area is a mess,” said Claudia Costa, a New York-based partner at Gordon Rees Scully Mansukhani L.L.P., speaking at the conference.
Currently, federal law does not afford protections to transgender people, but states and municipalities differ as to protections afforded. If a company does not protect its transgender workers, it could lead to potentially costly lawsuits for business owners, said experts.
“Just because the federal government is coming out and saying we are not including this (gender identity) as being protected under sex discrimination, Title VII, the states are doing the opposite. Many states and local ordinances are protecting transgender people. For retailers, if you are operating in multiple states and jurisdictions, you likely have different laws you have to conform with amongst your different areas of practice and operations. You have to protect yourself on the state and local level,” said Dove Burns, a New York-based partner at Obermayer Rebmann Maxwell & Hippel L.L.P.
Transgender people being denied access to public restrooms has been an issue over the years, and experts say employers should follow guidelines set by the U.S. Occupational Safety and Health Administration, which states that all employees have the right to access bathrooms that correspond with their gender identity.
“This an issue that is continuing to evolve, and it’s very costly litigation. Some of the considerations are health issues, privacy rights and religious rights,” said Tracie Coleman-Tucker, Chicago-based senior specialty claim consultant at The Hanover Insurance Group Inc. “The takeaway for employers is that both OSHA and the U.S. Equal Employment Opportunity Commission provide guidelines to help employers understand what sort of accommodations they need to consider in respect to transgender individuals.”
In 2016, Deluxe Financial Services Corp. agreed to pay $115,000 as part of the settlement of a sex discrimination and harassment lawsuit brought by the EEOC. In the case, Deluxe refused to allow a transgender employee to use the restroom that corresponded with her gender identity, while supervisors and co-workers subjected her to a hostile work environment, according to Ms. Coleman-Tucker.
Potential financial loss can be a motivator for employers who have not already addressed how to accommodate transgender workers, experts say.
“I go back to what really hits business people: money … there is a financial risk, plus the risk of bad press,” said Ms. Costa.
It is also important for insurers to stay up to date, experts say.
“Recently I was speaking at a carrier, and the underwriting department came up to me to ask me to help them with their forms,” Ms. Costa said. “For underwriters, how many of you ask, ‘When is the last time you updated your handbook? Does it include LGBTQ policies, and what does it cover? Does it cover dress codes, family leave, bathroom use?’ These are things that I bet if you go back to your carrier, a lot of them are not asking because they are using old forms.”
A group of retired generals, admirals and other senior officers have challenged President Trump’s assertion that allowing transgender people to serve in the U.S. military degrades readiness. By contrast, the military leaders said the move would, in fact, be more disruptive than the “don’t ask, don’t tell” policy implemented in 1994 under President Bill Clinton.