Societal norms change quickly. The law moves at a much slower pace and frequently struggles to keep up with social change.
We can see the convergence of law and societal shifts within our own workplaces.
Last summer, the U.S. Supreme Court ruled that same-sex marriage is the law of the land. While this decision had a tremendous impact on the personal lives and beliefs of individuals, it had an equal effect on employment-discrimination claims. On the heels of the Supreme Court decision, the U.S. Equal Opportunity Commission (EEOC) held that discrimination against employees based on sexual orientation is sex discrimination under federal law, giving rise to employees’ claims against employers.
Beyond rights being afforded based on sexual orientation and the right to marriage, the law is attempting to keep up with greater societal acceptance of transgender employees. Currently, changes in the law largely focus on restroom access. However, we anticipate in the near future even greater changes affecting transgender employees.
On June 1, the Occupational Safety and Health Administration (OSHA) published a guide to restroom access for transgender workers, mandating that all employers provide employees with sanitary and available toilet facilities. The guide stated that because gender identity is an intrinsic part of each employee’s everyday life, “restricting employees to using only restrooms that are not consistent with their gender identity, or segregating them from other workers by requiring them to use gender-neutral or other specific restrooms, singles those employees out and may make them fear for their physical safety.”
OSHA mandates that all employers find solutions that allow access to restrooms for transgender employees. It does not give a specific directive as to how an employer must provide accommodation, simply that the employer must do so.
OSHA further mandates that an employer has the duty to provide a safe workplace for employees. That duty states that the employer must protect all employees from physical violence, harassment, intimidation or other threatening disruptive behavior at the worksite. Violations of OSHA mandates can give rise to fines and civil penalties.
In addition to OSHA penalties and fines, an employer may be sued by a transgender employee for discrimination. In 2012, the EEOC held that federal transgender workers have protection against harassment, similar to the more traditional claims raised for sexual or age harassment and/or discrimination. Transgender employees may file a complaint with the EEOC for employment discrimination and/or harassment.
If a complaint leads to a lawsuit and the employee wins, the result could be restored employment, promotion of the employee and/or money damages.
Gordon Law founder Aviva Y. Gordon has more than 20 years of experience practicing business law in Southern Nevada.