What if Bruce Jenner Were My Employee? Employers and Transgender / Transitioning Employees.

Q.     Much has been made recently about Bruce Jenner and his upcoming exclusive interview with Diane Sawyer in which he will discuss his plans to live as a woman.  There seems to be a reality TV/gossip magazine quality to the way Jenner is going about this.  This makes sense because he is part of the reality show “Keeping up with the Kardashians,” and because there were rumors his transition would be made into his own reality show.   I can imagine that somebody contemplating a similar transition in the workplace could become a very delicate situation.  This may be particularly true if the transitioning or transgender employee wants to use the restroom that is inconsistent with his or her current anatomy.  If I, as the employer, allow the person to use the other bathroom, I might get a sexual harassment claim from the other employees and, if I don’t, then there is potential for a lawsuit from the transgender/transitioning employee.  I don’t know what I would do!  To avoid it all, could I simply have an office meeting in which we all openly discuss the issue so everybody feels comfortable?   Is that infringing upon the employee’s privacy?  Since Kim, Kourtney and Khloe’s biological dad was a lawyer I tried reaching out to the clan – but, they are ignoring my tweets – and, frankly, I can’t keep up.  Can you help?

A.     It’s good you asked.  All kidding aside, this indeed is a delicate situation as not all “transitioning” people would want reality TV documenting their situation.  The Fair Employment and Housing Act (“FEHA”) prohibits discrimination against, among other protected classes, sex, gender, gender identity, gender expression, and sexual orientation.  “Gender identity” and “gender expression” were expressly added to the FEHA in 2011 when Governor Brown signed into law AB 877 – The Gender Nondiscrimination Act.  AB 877 also specifically refined the definition of gender to include “gender identity” and defined “gender expression” to mean a person’s gender-related appearance and behavior, whether or not stereotypically associated with the person’s assigned sex at birth.   Based on FEHA, employers must carefully consider dress codes and appearance standards that require men and women to dress differently.  And, perhaps the more difficult aspect is the restroom.  Unfortunately, there is limited authority on this point.  The easiest solution, if practical, is to have gender neutral restrooms which allow only one person occupancy at a time.  However, this may not be practical.  If not, the employer must be very cautious about preventing somebody from using a bathroom inconsistent with that person’s gender identity.  The Obama Administration recently announced, “the White House allows staff and guests to use restrooms consistent with their gender identity, which is in keeping with the administration’s existing legal guidance on this issue and consistent with what is required by the executive order that took effect [Wednesday] for federal contractors.”  Although the White House’s policies are not binding law, it definitely provides insight into how at least the executive branch  – which includes the Department of Labor and the U.S. Equal Employment Opportunity Commission (EEOC) – views the issue.    Finally, you are right to be concerned about the employee’s privacy.  However, where an employee is making such an obvious change, he or she might not have any issue openly discussing it.  This may be an issue that you first discuss with the transitioning employee, and then, make a plan together on how to best approach it with your other employees in a private setting – you can leave the selfies, tweets and “leaked” information to the Kardashians.

This Legal Update / Bulletin is for educational purposes only as well as to give you general information and a general understanding of the law, not to provide specific legal advice. The hypothetical question is posed to illustrate a point and does not contemplate all potential legal considerations This update should not be used as a substitute for competent legal advice from a licensed professional attorney in your state.

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