Local Attorney to Discuss Transgender Rights in the Workplace

SPRINGFIELD — Transgender identity and gender transition have taken center stage in the media in recent weeks, but the rights of transgender individuals in the workplace are still unclear to many. Several federal agencies — including the Equal Employment Opportunity Council (EEOC) — have created or revised policies to protect transgender individuals from discrimination in the workplace. These policies set forth what business owners must know to protect themselves and their employees, according to local employment law attorney, Marylou Fabbo.

A partner at Springfield-based Skoler, Abbott & Presser, P.C., attorney Fabbo has been selected to discuss transgender discrimination in the workplace during the 20th annual Advanced Employment Issues Symposium (AEIS) in November.

“Employers are required to provide equal opportunity to people who are lesbian, gay, bisexual and transgender (LGBT),” said Fabbo.” There is absolutely no excuse for not treating transgender employees with dignity and respect. It is especially important with the recent stance of various federal agencies that employers take proactive measures to insure that employees transitioning and those who have transitioned are treated in the same manner as all other employees. Human resource management should draft transition policies and educate employees accordingly.”

Just days after the Occupational Safety and Health Administration (OSHA) published “A Guide to Restroom Access for Transgender Workers” to advise employers on ways to accommodate transgender employees, four federal government agencies with roles in ensuring fairness in the federal workplace — the Office of Personnel Management, the EEOC, the Office of Special Counsel, and the Merit Systems Protection Board — released a guide on the rights of employees who allege sexual orientation or gender identity discrimination. The guide, which was reissued after more than a decade, has been substantially revised to reflect major recent developments in the law.

“The guide from OSHA addresses a very specific area of the workplace: the restroom,” said Fabbo. “Among the concerns of employers are the reactions of coworkers regarding a transitioning employee’s restroom use. The core principle of the OSHA guide is that transgender employees should have access that corresponds to their gender identity. Restroom access for transgender individuals has generated controversy — especially in recent weeks — and led to claims of discrimination.”

Employers that don’t respect a transgender worker’s restroom choice, for example, could run the risk of potential liability under Title VII of the 1964 Civil Rights Act. Among the best practices for providing restroom access for transgender employees are:
• Single-occupancy gender-neutral (unisex) facilities, and
• Use of multiple-occupant, gender-neutral restroom facilities with lockable single-occupant stalls.

According to a 2013 study by Fenway Health, 65% of Massachusetts’ transgender population have experienced discrimination in public settings — including being denied access to public restrooms. On July 11, during Boston Pride Week, a celebration of the LGBT population, Boston Mayor Marty Walsh signed an executive order to immediately establish gender-neutral restrooms outside his office in Boston City Hall.

“State and federal agencies are speaking out and changing policies,” said Fabbo. “OSHA has stated that failure to provide appropriate restrooms for transgender employees might be an OSHA violation because it is a health and safety hazard. In the past five years – and especially within the last few months – the topic of transgender equality has been steadily on the rise and employers should be prepared to address it.”

The Advanced Employment Issues Symposium will be held Nov. 4-6 in Las Vegas, bringing together employment law attorneys and human resource experts to deliver compliance guidance and strategic HR solutions. Fabbo will present Gender Identity and Expression: Accommodations and Conversations Related to Transgender and Gender Non-Conforming Employees at the symposium Nov. 6. The presentation will highlight the proactive approach employers should take to ensure policies and practices related to dress, use of bathroom facilities and other issues are handled in a legally compliant and respectful manner.