Refusing to Allow Transgender Employee Bathroom Access is Evidence of Discrimination
Tina M. Carr, a transgender woman, was among a group of students that her college proposed for a medical assistant extern position at North Shore-Long Island Jewish Health System, Inc. (North Shore). North Shore selected Carr for an externship without an in-person interview.
Before her externship began, Carr also interviewed for a full-time position at North Shore with Christine Torre. During the interview, Torre explained that successful completion of the externship program would result in an offer of employment with North Shore.
During her externship, Carr was supervised by Christine Demers. According to Carr, Demers consistently demeaned her in the presence of others.
Carr claimed that she was repeatedly locked out of the bathroom used by North Shore’s female employees and that Demers told her to “use the public restroom, and not the restroom designated for the female employees.”
Demers also called Carr’s gender into question when she refused to let Carr participate in the examination of a female patient, telling her “only females were permitted beyond this point.”
In addition, after Demers inquired about Carr’s religion and Carr said that her church welcomed people of “alternative lifestyles,” Demers told a patient that Carr’s religion “is not a religion that is recognized by Jesus and people like her, and the he-shes . . . and the gays will need to answer to Jesus some day.”
The day after the conversation about religion, Torre emailed Carr and asked her not to return to her externship.
Carr sued, claiming that North Shore discriminated against her and failed to hire her on the basis of her sex and religion in violation of Title VII of the Civil Rights Act of 1964. She claimed that “all, or nearly all” externs were offered permanent positions and that it was North Shore’s custom and practice to offer those positions to externs.
North Shore argued that Carr could not make a discrimination claim because she was an unpaid intern rather than employee. The Court agreed, noting that compensation is the “threshold issue in determining the existence of an employment relationship” under Title VII.
North Shore also argued that Carr failed to show that North Shore had a discriminatory intent when it refused to hire her. However, the Court found that Carr made a sufficient showing of discrimination to proceed to trial. Demers’ negative comments, her refusal to allow Carr to participate in a patient’s examination, and her remarks about Carr’s religion, followed by Carr’s termination, provided evidence that North Shore had acted with discriminatory intent when it failed to hire her. [Carr v. North Shore-Long Island Jewish Health Systems, Inc. (USDC EDNY 2016) no. 14-cv-3527 (JS) (SIL)]
Bathroom access is an evolving issue that involves various laws, such as:
Title IX: In the past, transgender students have used Title IX to get accommodations such as access to facilities that are consistent with their gender identity.
OSHA: In addition, the US Occupational Safety and Health Administration (OSHA) recognizes that restroom access is a health and safety matter. Under its Sanitation Standard, OSHA requires employers to provide employees with restroom facilities. In 2015 OSHA published a Guide to Restroom Access for Transgender Workers that suggests that “all employees should be permitted to use the facilities that correspond with their gender identity.”
Title VII: In 2015 the US Equal Employment Opportunity Commission (EEOC) started suing employers for denying employees use of a restroom consistent with their gender identity. In those cases, and in its 2016 Fact Sheet on Bathroom Access Rights for Transgender Employees, the EEOC stressed that denying an employee equal access to a common restroom corresponding to the employee’s gender identity is sex discrimination under Title VII.
The EEOC continues to enforce protections for LGBT workers and to pursue actions concerning Title VII and sexual orientation discrimination in all areas of employment. In July 2016 it announced a $202,000 settlement of a sexual orientation discrimination lawsuit for an employee who was harassed based on her sexual orientation.
Gender discrimination in the workplace is often not reported. It can be hard for management to recognize, especially when it happens in the form of subtle slights. But employers can take steps to hire and retain a diverse workforce in which employees can, as the EEOC ensures, “perform their jobs free from discrimination.”
By creating a compliance culture that is free from discrimination, employers can help their organizations become more successful. In a Forbes Insights Study on global diversity and inclusion, senior executives said that diverse experiences, perspectives, and backgrounds are crucial to innovation and the development of new ideas.
According to the Harvard Business Review, diversity can drive innovation by creating an environment where leaders value differences and employees can find senior people to support their “outside the box” ideas. The article states that “when at least one member of a team has traits in common with the end user, the entire team better understands that user.”
Many companies recognize the value of diversity to their success. The Colgate Palmolive Company says that “the rich diversity of our people, our thinking, our talent, and our suppliers is key to our success.” And the Coca-Cola Company says that “diversity is an integral part of who we are, how we operate and how we see the future.”
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