The Battle over Bathroom Rights

Balancing the religious freedoms of employees with gender expressions in the workplace may be an impossible task for HR professionals, experts say.

Thursday, May 12, 2016
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While North Carolina is getting slammed on all sides regarding its House Bill 2 -- which not only overturned existing lesbian, gay, bisexual and transgender protections but now requires individuals in public facilities to use bathrooms that match the biologic sex identified on their birth certificate -- HR professionals nationwide are trying to figure out how to accommodate the needs of their own workforce.

Nationwide, more than 200 anti-LGBT bills have been proposed in various states, says Michelle Phillips, principal at Jackson Lewis law firm in White Plains, N.Y. While Mississippi also passed similar legislation, she says either the majority of states have repealed such bills, as Alabama has, or postponed them until the next legislative session.

Meanwhile, North Carolina is already feeling the wrath of employers and others who oppose the "bathroom law." PepsiCo, which has several facilities in North Carolina, asked the state to repeal it. PayPal cancelled its expansion plans, killing hundreds of potential jobs in the state. Likewise, prominent performers, including Bruce Springsteen, cancelled scheduled concerts and shows. Anticipating more boycotts, Pat McCrory, the state's Republican governor, amended his executive order in April. Phillips says N.C. state agencies can now provide single-occupancy restrooms, locker rooms or shower facilities upon employee request.

But many believe the governor's solution ignores the underlying problem -- LGBT discrimination. Last week, the Department of Justice sent McCrory a letter demanding that the state stop enforcement of the law, because it violates federal civil-rights protections, or risk losing billions in federal funding. But the governor dug in his heels, joking on a local radio show that he may soon be searching for a new job. On Monday, he sued the DOJ, challenging its opposing stance.

So far, only 19 states and the District of Columbia offer gender-identity protections, and 22 states and the District of Columbia provide sexual-orientation protections, says Phillips. Still, employers operating in any of the remaining states could be sued.

She points to two cases filed by the Equal Employment Opportunity Commission in 2014 -- in Florida and Michigan that both involve two employees transitioning from male to female -- who were fired for expressing their gender identity."The reality is that the EEOC will pursue or accept charges, conduct investigations and file lawsuits even if you're in a jurisdiction where there is no state protection," Phillips says.

Among employees' top concerns about sharing bathrooms with transgender coworkers is an unwarranted fear for their safety, says Phillips, who routinely trains and counsels employers on this topic. They're concerned that a transgender female or a heterosexual male posing as a female will inappropriately touch them.

She recalls one HR professional who vowed to quit rather than work with transgender staff and a manager who planned on driving home to use his bathroom to avoid sharing one with transgender employees.

For many HR professionals, balancing the religious freedoms of employees with gender expressions in the workplace appears to be an impossible task.

"[T]hey're concerned that they won't say the right thing, offend someone or not [properly] deal with staff complaints," Phillips says. "Don't panic.  If you treat it like any other accommodation issue, the answers will become clear."

Still, there are no easy fixes, says Laura MacLeod, founder of From the Inside Out Project, a national employee-relations consulting firm in New York.

Part of the solution requires HR to listen to employee objections versus dismissing them as silly or ridiculous.

"Empathize with people about their religious views and fears," MacLeod says. "Hear it, respond to it, pick it apart, offer facts and history -- someone coming in and inappropriately touching [another employee] has never happened."

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 Whenever possible, HR should converse with employees on a personal level. HR's goal, MacLeod says, is to help employees adapt to a diverse workforce and manage conflicting viewpoints. Otherwise, she says, they may feel isolated and become resentful and defensive.

Invasion of privacy is yet another sticky issue. Other than building unisex bathrooms, employers can install longer stall doors in bathrooms and cover the cracks between stall walls and doors to enhance privacy, says Stacy Hickox, an attorney and associate professor in the school of HR and labor relations at Michigan State University.

Also consider asking employees who are transitioning for ideas. They may offer a solution that makes everyone feel comfortable, she says, such as they will only use the unisex bathroom.

Overall, she says, HR should focus on employee education and tolerance. Since many employee concerns are based on a lack of understanding and stereotypes, Hickox suggests addressing transgender issues in diversity-training programs.

"Just like any diversity training, talk about perceptions versus reality," she says. "Bring [external] people in who are transgender. They can offer more of a reality than [one] based on fears."

But for employees who won't budge, she says, HR professionals need to stand firm, telling those who refuse to tolerate or work with transgender individuals that they may need to look for work elshwhere.

"Employers need to remain true to what they believe . . . and what their organization stands for," says Hickox. "If that's tolerance and welcoming diversity, they need to stick with that."

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