This issue has come up several times recently, so let’s look at it!
Q. I recently hired a transgender employee. Some employees have told me that using pronouns which don’t align with someone’s biological sex goes against their religious beliefs, while others expressed discomfort with this employee using the restroom that matches their gender identity. I want to respect everyone’s beliefs. How should I handle this?
A. Both federal and California law require employers to ensure a workplace free from discrimination, including gender identity and expression. The California Fair Employment and Housing Act (FEHA) explicitly protects transgender employees, requiring employers to recognize the employees’ preferred name and pronouns and allow them access to facilities that align with their gender identity.
Additionally, Title VII of the federal Civil Rights Act of 1964 bars sex and gender discrimination in employment but does not explicitly prohibit workplace discrimination based on gender identity. However, the U.S. Supreme Court ruled that any employment decision based, at least in part, on a person’s sexual orientation or gender identity constitutes unlawful discrimination under Title VII.
Until recently, the Equal Employment Opportunity Commission (EEOC) recognized that persistent misgendering or restricting restroom access could constitute unlawful harassment under Title VII. Following recent executive orders from the Trump administration, however, the EEOC has shifted its stance, moving to dismiss existing gender identity discrimination cases and revising its enforcement policies accordingly.
Despite these federal policy changes, the legal protections under California’s FEHA and Title VII remain unchanged, and employers still are required to comply with anti-discrimination laws at both the state and federal levels. Although sincerely held religious beliefs also are protected under both Title VII and FEHA, those beliefs do not exempt employees from complying with anti-discrimination laws.
Employers must provide reasonable accommodations for religious beliefs, but not if the accommodations impose undue hardship or create a hostile work environment for other employees.
The law is clear that employers cannot grant religious accommodations that violate state or federal law.
Red Flag Tip
The best approach is to establish clear policies that reinforce workplace respect, provide training on inclusion and compliance with both state and federal law, and ensure managers are prepared to address concerns appropriately. Employees do not have to agree personally with company policies but must adhere to them. Employees having safety concerns related to restroom use should report them to management so those concerns can be addressed appropriately.
However, a transgender person using the restroom that aligns with their gender identity does not, in and of itself, pose a safety risk. Policies should emphasize that all employees are expected to treat one another with respect and that discrimination or harassment will not be tolerated.
If you face a similar issue, please contact our office for further assistance. We have a document of helpful information titled, “Transgender Employee: Use of the Bathroom” Please let us know if you would like a copy sent to you! |
