Blog Archives

Gender Identity or Expression
EEOC Fact Sheet on Transgender Employee Bathroom Access

In what appears to be a definitive answer to the question of whether employers must allow a transgender employee to use a restroom that is reserved for the sex with which the employee identifies, the EEOC has issued a fact sheet addressing bathroom access rights for transgender employees.

In its fact sheet, the EEOC cited to federal cases which found that denying an individual equal access to a common restroom corresponding to the individual’s gender identity is sex discrimination.  Similarly, an employer also cannot require a transgender employee to use a single-use restroom (or presumably, a unisex restroom, if a single sex restroom is available).  The EEOC has defined the term “transgender” as people whose gender identity and/or expression is different from the sex assigned to them at birth (e.g. the sex listed on an original birth certificate).

Of course, this is just the EEOC’s position on the matter, and there is no guarantee federal courts will adopt the same conclusion.  Nevertheless, the EEOC’s interpretation of the law is usually given deference by the courts, so it’s a safe bet that courts will also require employers to allow transgender employees to use the restroom that corresponds to the employee’s gender identity.  In Hawaii, there is no law that directly addresses this question.  However, based on a lawsuit that was filed against the state a couple of years ago, Hawaii employers are advised to allow transgender employees to use the bathroom of their corresponding gender identity.

The EEOC’s fact sheet is in line with a fact sheet issued by the DOL’s Occupational Safety and Health Administration (“OSHA”) in 2015.

 
Workplace Accommodations Made Easy

Hi Everybody!   I hope you’ve all had a great year so far and have at least some free time to enjoy the Holiday Season!  I can’t believe that it’s Thanksgiving week already.  It seems like the days, weeks, months and years seem to go by so much faster as I get older.  Like the saying goes…

timeflies

Anyway, I wanted to send out a quick blog post to let you all know about an exciting workshop I will be presenting in the first quarter of 2015.  Due to several requests from HEC members, I’ve decided to put together a half-day program discussing the different types of accommodations employers must provide their employees (applicants and volunteers) in the workplace.  The topics of discussion will include accommodations based on disabilities, religion, pregnancy, status as a victim of domestic or sexual violence, and gender identity and expression, as well as others

The seminar will be presented on the following dates and locations.  All sessions will be held from 9 am to 12 noon.  (Click for link to registration form.)

The program will be informative, interactive and (hopefully) fun!  You can register for the event by visiting the training section of the HEC website at http://www.hecouncil.org/all-training.  I hope you can join me and Happy Holidays!

 

 
Follow-up Interview with KHON2 on Public Accommodations Law

Just as I was about to step into a lunch meeting yesterday, I got call from Gina Mangieri saying that her story on the gender identity lawsuit garnered so much interest (and questions) from viewers, she wanted to immediately do a follow-up story on some related issues.  For this second story, she wanted to talk about access for transgender individuals to areas open to the public, including restaurants at private businesses, as well as locker rooms for gyms such as 24-Hour Fitness.  Therefore, I went to the KHON2 studios to meet with her to answer a few questions about Hawaii’s public accommodations law.

NewsPaper

During this interview, I explained that Hawaii’s public accommodations law prohibited businesses from discriminating against individuals on the basis of their gender identity.  In other words, a private business (that is open to the public) cannot refuse service to an individual on the basis that the individual is a transgender.   Specifically, Hawaii’s public accommodations law prohibits businesses from denying an individual “the full and equal enjoyment of the goods, services, facilities, privileges, advantages, and accommodations of a place of public accommodation on the basis of race, sex, gender identity or expression, sexual orientation, color, religion, ancestry, or disability are prohibited.”  I also noted, however, that unlike the law on public accommodations for individuals with disabilities, the law is not entirely clearly on what types of accommodations must be provided to transgender individuals, if any.

You can view the news clip on KHON2′s website here:  Anti-Discrimination Law Doesn’t Specify Access for Transgenders.

On a side note, before we started our interview, I saw Joe Moore and Pat Sajak walking together through the studio.  Apparently, they are doing a play together at the Hawaii Theatre later this month.

 
Interview with KHON2 on Gender Identity Lawsuit

Yesterday morning, I was interviewed by Gina Mangieri from KHON2 news about a pending lawsuit and charge with the Equal Employment Opportunity Commission by a state employee from the Public Safety Department that alleged she was discriminated against because of her gender identity.  The employee is a transgender individual who identifies herself as a female.  Her lawsuit alleged she was denied access to the women’s restroom, and instead, was assigned the use of a “gender-neutral” restroom at her workplace.

During the interview, I explained that while Hawaii does have a relatively new law that prohibits employment discrimination based on an individual’s gender identity or expression, the law is not entirely clear on what types of workplace accommodations (if any) must be provided for transgender employees.  For example, unlike Hawaii discrimination law on disability and pregnancy, there are no Administrative Rules that address accommodations for transgender employees.

I also clarified, however, that there is a growing national trend of court decisions ruling that employers should allow employees to use a restroom based on the employee’s perceived gender.  Therefore, employers who want to take the safe approach to this issue should follow the national trend.  At the same time, none of those court decisions are from Hawaii – therefore, while they may be instructive and provide some guidance on how to handle these types of situations, they are definitely not binding on any Hawaii employers.

The story was featured on the 10 o’clock news last night.  You can view a news clip of the story on the KHON2 website here:  Transgender Employee Sues State for Discrimination.

This was my first time meeting Gina, and she seemed like a really intelligent and personable reporter.  Here’s a photo of us standing outside HEC’s offices.