How to Deal With the Situation

I include a word document for my opinion concerning the situation that has developed, involving an employee whose recruitment information indicates that she is a female but was seen using the male’s restrooms during lunch break. The first step would include talking to her to find out why she decided to use the male’s restrooms and later conducting thorough research on how to deal with the situation.

The word document starts with my opinion on how I would deal with the situation, identifying the employee as transgender. I have also included information on restroom access policies that organizations should comply with. Finally, the document addresses the legal protection that the human resource department is expected to observe in this case.

The only difficulty that I had was in deciding how to contact the employee and how to make the situation known to another employee without raising negative impacts. The challenge was overcome through gathering information on how other firms have dealt with such situations. Overall I am pleased with the information I was able to gather.

Introduction

Transgender individuals are people who identify with another gender, other than the one that they were assigned at birth. In most cases, their gender expression is seen through the way they dress, their voice and mannerism. Such people go through transition, which is the period that they take as they change their gender. All civil rights movement consider the use of restrooms as a right that everyone should enjoy without discrimination according to race, tribe, and gender.

Restroom access for transgender individuals has become a standard source of controversy in many organizations. This is due to the increase in the number of people who decide not to identify with their biological gender. Putting in mind that every person has a right to identify with the gender of their choice and to use restrooms at their workplace, the situation has raised diverse views. This study is based on a situation whereby an employee identified as a female during recruitment but was found out to be using the male’s restrooms over lunch break. On checking the employee’s information, the management discovered that her spouse’s name is Katherine.

There are two possible causes of the employee’s actions. Firstly, the employee could be a male biologically, who is presenting himself as a female. The second possible case could be that the employee is biologically female but would want to identify with the male gender. The CEO approached the HR manager with the need to find out his own opinion about the situation, which led to the HR manager conducting this study. It may sound like an issue that only requires common sense to decide on bathroom usage for transgender individuals, but it has attracted different and controversial opinions. Such individuals face discrimination from the society which is hurtful and can also affect their productivity. Also, the decision that the management will take should not affect the productivity of the other employees’ negatively.

How to Deal with the Situation

It would be essential to start by asking the employee the gender pronoun that she would prefer. It is evident that most males who are in a male-to-female transition prefer being addressed as females and vice versa, (Grant et al., 2011). The most likely cause of the employee’s actions, in this case, is that she was assigned a female gender at birth but would want to identify as a man. That is why her records indicate that she is a female but she is using the male’s restrooms and she is married to a female. In such a case, the company would be required to address her as a man, and in case she needs new business cards, then the management should help her in getting them. Any other practicalities that need to be changed such as the name on the email account should also be changed. Since the process of changing the legal name takes time, the employee’s legal name should be used for official purposes as she awaits the legal change of names. However, he preferred names should be used during the day-to-day interactions at the workplace.

The next issue that the management needs to address is the issue of restrooms. This is because the male employees might object sharing a restroom with a colleague they still think is a female and vice versa. This study identifies this situation as a “safety issue,” which should be treated with care so as not to harm the employees’ motivation. The view of transgender individuals as sexual deviants and somehow dangerous has been identified as prejudice by most scholars, (Grant et al., 2010). In reality, there is nothing about transgender that would create safety issues for other employees. The HR manager, therefore, suggests that all the employees should be carried along and made to understand that the firm considers their safety, which will not be affected by the transition. Having noticed that the employee gets along quite well with the others, there is a high probability that the team will support her if it is informed and involved in the decision-making process.

If the employee feels male, identifies as a male and would prefer to be treated as a male then it would be good for the organization to treat him that way, and vice versa. The HR manager finds this to be a simple task at a practical level. The company should treat the employee just like any other male or female should be treated, including in the use of the restroom and the new showers at the fitness center.

Restroom Access Policies

Some state and cities have addressed the restroom issue and laid policies that govern their accessibility. This has been triggered by the current legalization of LGBT rights in the US and other parts of the world. The Department of Labor’s Occupational Safety and Health Administration (DOL/OSHA) requires the organization to make accessibility to sanitary facilities free and comfortable as a way of preventing adverse health consequences, (Grant et al., 2010). Employees should have equal and fair access to bathrooms at their workplaces, regardless of their gender, sexual orientation, race, among other factors. For employees who are undergoing gender transition, they should be allowed to have access to the restrooms and locker room facilities according to the gender that they identify with. Under no circumstances should firms ask employees to use restrooms that are unsanitary or are at inconvenient locations. Washington D.C. has advocated for the use of gender-neutral bathroom signs, (Seelman, 2014). Employers are also required to come up with restroom conditions that are safe and convenient for transgender employees.

Legal Protection

The current law does not include ”transgender employees” as a protected group. However, it is clear that the legal trend is towards the protection of the rights of transgender individuals. Although most of such individuals do not file a lawsuit, there have been cases where organizations had to pay damages for transgender discrimination. Employers are also increasingly adopting policies that protect such individuals. Studies have confirmed the significance of having a diverse team, which has made employers become tolerant and appreciate their employees’ diversity, (Kerrigan, 2012). It is essential for organizations to work with transgender employees and make them feel welcome in the organizations, regardless of their gender identity.

Employment Discrimination Laws

Employment discrimination laws are against workplace discrimination, whereby some people are treated unfairly due to their gender, race, religion, color, pregnancy and sexual orientation. Title VII of the Civil Rights Acts prohibits such discrimination, (Harrison-Quintana & Herman, 2013). Victims are always encouraged to sue the defamer or the organizations that discriminate them. The federal law also protects employees from being fired on the basis of their sexual orientation, (Priola et al., 2014). It is therefore clear that the employee in Situation #1 cannot be fired due to her gender identity.

Employees should sue their employers in case of the following: when there is evidence that the employee was fired due to discriminatory reasons, whenever there is circumstantial evidence of discriminatory reasons, whenever similar employees are treated differently on the basis of sexual orientation, whenever the employer’s action indicate bias to some groups and whenever the employer or supervisor makes comments that show that he or she is discriminating some groups, (Harrison-Quintana & Herman, 2013).

HR Law Cases

The Equal Employment Opportunity Commission (EEOC) issued a ruling on 1st April 2015 which confirmed that the most common forms of harassment experienced by transgender individuals comprise of unlawful discrimination under Title VII. The following are recent HR cases:

The Case against Department of the Army

A transgender employee, Tamara Lusardi, was represented by Transgender Law Centre in a case against the Department of the Army. The employee had transitioned from male to female while still at work. He supervisors barred her from using the female restrooms, claiming that the department recognized her as a man. The supervisor had also used male names and pronouns to refer to her, even after the transition. The employee was committed to her work, which she was passionate about. With a pro bono assistance from Lieff, Cabraser, Heiman, and Bernstein, the employee understood that she should be judged according to the quality of services that she delivers, and not who she is, (Reisner et al., 2016). She expressed her disappointment when she was barred from receiving the treatment that her female colleagues receive, such as the use of the female restrooms.

The employee worked as a Software Quality Assurance Specialist in Alabama, whereby she transitioned into a female in 2010. After the transition, her supervisor required her to use a single-user restroom. In occasions where the restroom was not in order, the employee used the common female restrooms which made her to be reprimanded by the supervisor. The EEOC made it clear that such an act violated the employee’s rights. By requiring her to use a single-user restroom, the army deprived her of the right of equal treatment with other female colleagues, which was a violation of the law. Also, the supervisor occasionally used male pronouns to refer to the employee. He also repeatedly used her previous name while addressing her in front of the other employees. This was a sign that the supervisor was intentionally mocking the employee, unlike unintentional slips of the tongue. The EEOC discovered that the use of the male pronouns and the previous name was not accidental, but was a way of humiliating the employee. Such an act is demeaning and at the same time offensive in nature. The commission, therefore, made it clear that the supervisor had made the working environment hostile to the employee’s existence, due to her gender identity.

The Director of Transgender Law Centre made it clear that it is unacceptable to harass transgender employees. The law is clear on such issues, whereby every citizen has a right to earn a living and to be himself or herself at work. Transgender employees should, therefore, be treated fairly and allowed to use the bathrooms that are used by the gender that they identify with. It is against the law to discriminate employees based on their transgender status under Title VII.

The EEOC, therefore, ordered the Army to compensate the employee for the humiliation that she went through and compensate the attorney’s fee. The Army was also required to provide training to all its employees on the need to avoid discrimination and ways of accommodating transgender individuals. However, the same case was also tackled by the Office of Special Counsel (OSC), which demanded training to the supervisor and the employees due to the unlawful act but did not require the employee to be provided with monetary compensation for the damages.

Deluxe Financial Sued for Sex Discrimination Against and Employee

Britney Austin is an employee who had performed her tasks appropriately in the company over a long period in Phoenix. The EEOC sued Deluxe Financial for sexual discrimination against the employee after discovering that she was transgender. The employee had informed her supervisor on the issue, but he refused to allow her to use the female’s restrooms. The supervisor and the co-workers made the working environment a hostile one through intentionally addressing her with male pronouns. Such actions are considered as sex discrimination, under Title VII of the Civil Rights Act of 1964, (Reisner et al., 2016).

The lawsuit took place in the District of Minnesota, where Deluxe Financial headquarters are located. The EEOC demanded both monetary and injunctive relief as a way of compensating for the humiliation that Austin underwent. The lawsuit made it clear that transgender individuals, gays, lesbians, and bisexuals are protected against discrimination and should be treated just like any other employee.

Lakeland Eye Clinic Ordered to Pay $150,000 to Resolve a Transgender Lawsuit

Lakeland Eye clinic agreed to implement new gender identity anti-discrimination policy as a way of settling a lawsuit by the EEOC in 2015. The new anti-discrimination policy was supposed to help in training the employees on the need to embrace transgender individuals and treat them just like any other employee. The U.S. District Court in Tampa supported the EEOC in achieving its mandate of protecting and enforcing the rights of transgender individuals. The company was charged with discriminating its employee based on her sexual orientation, who was fired after she started identifying as a woman. The employee was the Director of Hearing Services who had performed her duties exceptionally during the period of employment.

The regional attorney of the Miami District Office, Robert E. Weisberg appreciated Lakeland Eye Clinic for its timely cooperation in making changes to its company’s policy concerning transgender. The company adopted a new policy and immediately started teaching its management and employees on the need to observe the law. Robert made it clear that such an act was the beginning of the creation of a conducive working environment for the American transgender individuals. It was a way of adopting an inclusive work environment, which appreciates employees’ diversity and only judges them according to their performance rather than their gender identity, (Kirkland, 2016).

Detroit Funeral Home Chain Sued for Sex Discrimination against an Employee

The company fired a transgender employee, Stephens, who was transitioning from a male to a female. The defendant argued that the employee did not fit into the company’s gender-based expectations and preferences. The EEOC filed a lawsuit against the company due to sex discrimination against the employee. The company had employed Stephens since October 2007, whereby she performed her duties satisfactorily. Harris, the supervisor, received a letter from Stephens explaining the fact that she was a transgender and would soon start identifying as a female through her dress code and other mannerism. Two weeks later, Stephens was fired, and the company claimed that what she was doing was unacceptable in the organization.

The EEOC filed a lawsuit against the company for discriminating the employee. The District Court for the Eastern District of Michigan ordered both monetary and injunctive relief. The EEOC made it clear that the defendant had considered the employees’ sexual identity in making the adverse decision of firing her. Employers are therefore prohibited from discriminating employees simply because they do not behave like men or women, depending on the employers’ opinion.

Human Rights Campaign

According to Occupational Safety and Health Administration (OSHA), equal access to restrooms at the workplace is not only a civil right but also a health and safety one. The decision on whether transgender individuals should be allowed to use the restrooms that are used by the gender that they wish to identify with therefore falls under the jurisdiction of OSHA since it oversees sanitation, (Trotter, 2015). For instance, if a man who is in transition to a woman has to use the male’s restrooms, he is likely to be afraid. If such a person is prohibited from using the female restrooms, then he may decide not to be using restrooms while at work, which can pose health problems.The Human Rights Campaign claimed that about two-thirds of the fortune 500 organizations had adopted anti-discrimination policies by the end of 2015, (Trotter, 2015). The policies were aimed at eradicating discrimination against transitioning employees. However, the restroom uses remained to raise controversy among some employers. OSHA requires organizations to take the dignity of their employees seriously and ensure that their work in conducive environments.

The Researcher’s Opinion

Having considered the above discussion, it is essential to recognize the researcher’s point of view. The company is supposed to evaluate the employee’s employability based on her performance and not her gender identification. Putting in mind that she gets along with other employees quite well, then her performance could also be good. OSHA’s campaign on human rights requires good accessibility of restrooms at the workplaces and considers a health requirement. The employee should, therefore, be allowed to use the restroom that is used by the gender that she identifies with.

Although the employee has not mentioned a lawsuit, it is essential to consider the recent cases that are similar to situation #1. The EEOC has sued multiple companies for sex discrimination against transgender employees. Companies have been required to compensate for the damages that are caused by the discrimination. It would, therefore, be necessary for the human resource department to organize a training session whereby the management, as well as the employees, would be taught on how to work together with transgender employees. The employees should address the employee according to her new names and pronouns.

The training will have a positive impact on the profit objective of the organization. This is because the motivation of the transgender employee will not be detrimental since she will appreciate the fact that her colleagues support her through the transition period. The organization will also not suffer the negative consequences that are associated with being sued. Also, embracing diversity will help the firm in enjoying different inputs of ideas from the employees. Once the community learns that the organization supports the transgender individual, then the transgender customers’ loyalty is likely to increase.

Conclusion

The study was aimed at studying on the way the organization should deal with a situation whereby an employee who identifies as a female was found out to be using the male’s restrooms. The HR manager promised the CEO to carry out detailed research on the issue and come up with suggestions. This study found out that it is against the law to fire the employee and to force her to use the restroom that is not being used by the gender that she prefers to identify with. Asking the employee to use a single-user restroom is also a way of discriminating, which would be charged severely in case of a lawsuit. This leaves the firm with the option of involving the employee in the decision-making process. This involves finding out the restrooms that the employee is comfortable with, the gender that she would like to identify with and addressing her using her new names. The federal government is strongly urging employers to allow employees to present themselves at the workplaces in a manner that is consistent with the way they present themselves during the rest of their daily lives. The Occupational Safety and Health Administration have also clearly stated that access to the restroom determines the health of the employees, and should therefore not be compromised. Access to the restrooms is not only a civil right but also a health and safety one. It is therefore crucial for all firms to adopt anti-discrimination policies that will ensure that transgender employees are treated like any other individuals. They should not be forced to use bathrooms that compromise their safety as well as their emotional well-being. If a transgender employee identifies as a woman, she should be treated like the rest of the female employees and allowed to use the female restrooms. The women who transition into men should also be allowed to enjoy the privileges that their male colleagues enjoy at their workplaces.

References

Grant, J. M., Mottet, L. A., Tanis, J., Herman, J. L., Harrison, J., & Keisling, M. (2010). National transgender discrimination survey report on health and health care. Washington, DC: National Center for Transgender Equality and the National Gay and Lesbian Task Force.

Grant, J. M., Mottet, L., Tanis, J. E., Harrison, J., Herman, J., & Keisling, M. (2011). Injustice at every turn: A report of the national transgender discrimination survey. National Center for Transgender Equality.

Harrison, J., Grant, J., & Herman, J. L. (2012). A gender not listed here: Genderqueers, gender rebels, and otherwise in the National Transgender Discrimination Survey.

Harrison-Quintana, J., & Herman, J. L. (2013). Still serving in silence: Transgender service members and veterans in the National Transgender Discrimination Survey. LGBTQ Policy Journal, 3(1), 1-13.

Kerrigan, M. F. (2012). Transgender discrimination in the military: The new don’t ask, don’t tell. Psychology, Public Policy, and Law, 18(3), 500.

Kirkland, A. (2016). What’s at stake in transgender discrimination as sex discrimination?. Signs: Journal of Women in Culture and Society, 32(1), 83-111.

Priola, V., Lasio, D., De Simone, S., & Serri, F. (2014). The sound of silence. Lesbian, gay, bisexual and transgender discrimination in ‘inclusive organizations’. British Journal of Management, 25(3), 488-502.

Reisner, S. L., Conron, K., Scout, N., Mimiaga, M. J., Haneuse, S., & Austin, S. B. (2016). Comparing in-person and online survey respondents in the US National Transgender Discrimination Survey: Implications for transgender health research. LGBT health, 1(2), 98-106.

Seelman, K. L. (2014). Transgender individuals’ access to college housing and bathrooms: Findings from the National Transgender Discrimination Survey. Journal of Gay & Lesbian Social Services, 26(2), 186-206.

Trotter, R. (2015). Transgender discrimination and the law. Contemporary Issues in Education Research, 3(2), 55.