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Bathroom gender battles create liability problem

Posted On: May. 8, 2016 12:00 AM CST

Of the many issues raised by North Carolina's law requiring transgender individuals to use public bathrooms corresponding with their gender at birth, liability may not be the most important, but it should be a major concern for employers.

The U.S. Equal Employment Opportunity Commission has already sued several employers over their treatment of transgender workers, including bathroom assignment. In addition, the agency last week issued guidance making clear its position that forcing transgender employees to use sex-segregated bathrooms that do not correspond with the gender they identify as is a violation of civil rights law.

Specifically with regard to the North Carolina law, the U.S. Justice Department weighed in by sending a letter last week to the state's leaders saying the law violates civil rights. And at least a couple of large companies have announced that they are curbing expansion plans in the state in response to the law.

But the legal battle is rousing action on both sides of the issue. A group of parents and students last week sued a school district in Palatine, Illinois, alleging that authorities continue to “trample students' privacy and other constitutional and statutory rights” by forcing girls to share bathrooms with “biological males.” And Target Corp. faces a boycott by some customers after it said it would allow workers and guests to use the bathroom of the gender they identify as.

The dispute over transgender bathroom assignment clearly is not going to be resolved easily, but employers need to establish a coherent and nondiscriminatory policy on the issue if they are to minimize their own liabilities. Hoping the controversy will not affect them is not an option — while there are no firm figures on how many transgender people are in the United States, the most common estimate suggests that 0.3% of the population is transgender. That may not sound like a significant proportion but it amounts to about 700,000 people, ranging from school children to seniors, all of whom, of course, need to use the bathroom.

Ultimately, the issue may be resolved by introducing gender-neutral bathrooms, but that would likely necessitate major overhauls of facilities in many workplaces to give all employees the level of privacy they want and should expect.

Meanwhile, employers should work under the basic premise that they should not discriminate against any employees. In the case of transgender employees, forcing them to go through the humiliation of using a bathroom allocated to a gender they don't identify as, regardless of the feelings of other workers, is highly likely to be regarded as discriminatory.

As with many shifts in medical science and societal norms, changes in behavior and views of what's acceptable are likely to evolve. But given some fairly clear direction on the issue of liability over transgender employment practices, employers need to adjust their workplace policies now rather than wait to be forced to by the courts.