Use of Single-Sex Facilities
Many people take their use of bathrooms for granted, but the use of single-sex facilities may be a fraught issue for some people. Bathrooms have been in the news a lot lately because of discriminatory actions and laws enacted against transgender individuals. In New York City, workers are supposed to be able to use the bathroom that is consistent with their own gender identity, regardless of which sex they were assigned at birth, their appearance, their anatomy, or what their identification says. Unfortunately, employers do not always abide by the law, and they may refuse to allow an employee to use the facility that corresponds to their gender. If you are denied the use of single-sex facilities based on your gender or gender identity in your workplace, the New York City transgender discrimination attorneys at Phillips & Associates may be able to represent you in a lawsuit for damages.Use of Single-Sex Facilities
Federal, state, and local laws prohibit discrimination on the basis of gender, but federal Title VII and state laws do not provide explicit protection for transgender and gender nonconforming individuals. The protection under Title VII, for example, is to be inferred from the general prohibition on gender discrimination, according to guidance from the EEOC. The EEOC has held that a federal agency denying equal access to a common facility corresponding to the employee's gender identity discriminated on the basis of sex. However, courts are not bound by the EEOC, and it is not yet certain how this issue will be decided in courts interpreting Title VII and the use of single-sex facilities.The New York City Human Rights Law
Under the New York City Human Rights Law, employees and workers are supposed to be able to use single-sex facilities and participate in single-sex programs consistent with their gender identity. In other words, it does not matter which sex you were assigned at birth, or what your medical records or your driver's license or passport say about your sex. While employers need not make existing bathrooms all-gender, they must allow employees to use the single-sex facility that corresponds with the sex that they believe that they are.
In some cases, customers, clients, or coworkers may object to sharing single-sex facilities with a transgender or gender nonconforming person. However, the transgender or gender nonconforming person must be given access over any objections by others. A covered employer that tries to defend on the grounds that customers were uncomfortable, and having a transgender individual in the bathroom made business more challenging, for example, will not be successful. Most employers are covered because the New York City Human Rights Law applies to businesses with four or more employees.Examples of Unlawful Conduct
It would be a violation, for example, to prohibit a transgender woman employee from using the women's bathroom. Similarly, it would be discriminatory to require an individual to provide an identification that has a particular sex marker in order to be able to use a single-sex facility or program. In some cases, there are safety concerns based on harassment, and a transgender individual who wants to use a facility corresponding to their sex assigned at birth instead of the one related to their gender identity is supposed to be able to do so.
If there are single-sex facilities and a single-occupancy restroom, it is unlawful to force the transgender employee to use the single-occupancy restroom rather than the facility that corresponds to their gender identity. Generally, however, an employer may choose to provide only single-occupancy restrooms or restrooms that are unisex.Reasonable Accommodations
Employers are also supposed to provide reasonable accommodations to workers who are transitioning. For example, a transgender man who is transitioning may ask to use a single-occupancy restroom only. The employer should grant such a request.
It is permissible for an employer to adopt a policy that has a neutral code of conduct for single-sex facilities. However, it is impermissible to single out transgender or gender nonconforming employees in the policy.Harassment
Harassment is a form of discrimination, and transgender workers may face harassment on the job due to their use of single-sex facilities. As a transgender employee who is being harassed, you should express that the conduct is unwelcome and follow whichever procedures are outlined in the employee handbook to file an internal grievance so that your employer has an opportunity to correct the situation.Contact a Gender Expression Discrimination Attorney in New York City
The use of single-sex facilities may be a significant point of concern for transgender employees. You should be able to work in an environment free of harassment and discrimination. At Phillips & Associates, our New York City attorneys can advise clients on filing internal complaints of gender identity discrimination, and we can bring a charge or lawsuit afterward if appropriate. Contact us online or at (212) 248-7431 to set up a free consultation with a gender expression discrimination lawyer. We fight employment discrimination in the Bronx, Queens, Brooklyn, Manhattan, and Staten Island, as well as in Nassau, Suffolk, and Westchester Counties and in New Jersey.
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