By Lawrence P. Schaefer |
It’s About More Than Just Bathrooms
Schaefer Halleen often represents LGBTQ clients in workplace issues, and Larry Schaefer recently moderated a panel discussion at the May 23-24 Upper Midwest Employment Law Conference addressing cutting edge legal issues in this rapidly developing field.
LGBTQ rights is in many ways the defining “civil rights” issue for this generation. It has been about a year since the United States Supreme Court in Oberfell v. Hodges established the constitutional right to same-sex marriage. The Court in Hodges overruled Baker v. Nelson (a decision by the MN Supreme Court), declaring that the Due Process and Equal Protection clauses of the Fourteenth Amendment to the Constitution barred any state from prohibiting same-sex marriage. This ruling was consistent with a shift toward acceptance of same-sex marriage in society, where public opinion polls typically reflected an almost 60% approval (with about 10% undecided) supporting same sex marriage, according to comprehensive polling conducted by the Wall Street Journal, the Human Rights Campaign, and CNN at the time of the Oberfell decision.
Expanding these equal rights based on sexual orientation to the workplace is a logical extension of this decision and shift toward acceptance in society. There have been significant changes and developments in regulatory enforcement fully supporting the recognition of these rights in the workplace, and this posts summarizes these developments.
In Lusardi v. McHugh, Appeal No. 0120133395, (April 1, 2015), the EEOC issued a decision declaring that Title VII’s prohibition against sex discrimination encompassed discrimination based on sexual orientation and/or an individual’s identification as “transgender,” and further declared that: “Gender reassignment surgery is in no way a fundamental element of a transition. Transitions vary according to individual needs and many do not involve surgery at all.” Id. at p. 9.
Since Lusardi, in June 2015, the Office of Personnel Management, the EEOC, the Office of Special Counsel and the Merit Systems Protection Board jointly issued a set of guidelines entitled “Addressing Sexual Orientation and Gender Identity in Federal Civilian Employment: A guide to Employment Rights, Protections and Responsibilities.” This Guide requires equal treatment of all LGBTQ employees and concludes by emphasizing the following message: “Through the equitable treatment of all applicants and employees, the Federal Government can set an example for the nation we serve.”
On June 1, 2015, OSHA published a “Guide to Restroom Access for Transgendered Workers” (available at www.osha.gov). This guide implemented OSHA’s “sanitation standard,” set forth at 29 U.S.C. § 1910.141 (requiring all employees to have reasonable access to toilet facilities, and not to be unreasonable restricted from using these facilities), by emphasizing how employees must be permitted to use their bathroom of choice based on gender “identity.” The guide states that employee must not be required to provide “medical or legal documentation confirming their gender identity,” and “should not be relegated to using a segregated facility because of their gender identity or transgender status.”
These developments make clear that gender identity and sexual orientation are to be considered protected “classes” under federal law, and when the right to equal employment opportunity is denied to individuals based on this protected class status, Schaefer Halleen attorneys are ready to vigorously advocate for these clients.