Overview

Employers are caught, once again, between agency pronouncements and White House actions. While President Trump commented on the campaign trail that transgender people should “use the bathroom they feel is appropriate,” he appears to have rethought this position as commander-in-chief.

On February 22, 2017, at the direction of the Trump administration, the Departments of Justice and Education released a joint “Dear Colleague” Letter withdrawing their May 2016 joint federal guidance regarding the rights of transgender public school students. Eleven days prior, the administration withdrew a motion filed by the Obama administration to challenge a nationwide injunction that had blocked enforcement of the guidance since August. While not directly involving workplaces and all employers, this action raises a red flag.

Despite its popular conception as a “bathroom directive,” the former guidance covered an array of issues from athletics to privacy and education records. However, the Dear Colleague letter focused on the “significant litigation regarding school restrooms and locker rooms[,]” citing conflicting decisions from the Northern District of Texas, which entered the nationwide injunction, and the Fourth Circuit Court of Appeals, which deferred to the former guidance, as evidence that the executive agencies need “to further and more completely consider the legal issues involved.” The letter also mentioned concerns regarding the roles of states and school districts in shaping educational policy.  It is unclear whether, or when, the administration plans to issue revised guidance in its place.

Predictions

Since the former agency guidance pertained to Title IX of the Education Amendments Act of 1972, which prohibits sex discrimination in federally funded education programs, its rescindment will not affect the EEOC’s general (or restroom specific) guidance on the rights of LGBTQ employees. Also, unlike the Departments of Justice and Education, the EEOC is an independent federal agency that the Executive Branch does not directly control. But, the President does appoint the Commissioners and control the General Counsel.

In addition, far-reaching executive actions do not operate in vacuums. Depending on how sensitive incoming agency heads are to the concept of regulatory overreach, this could be the beginning of a voluntary scale-back on federal agencies’ abilities to liberally construe antidiscrimination laws. While long lines of Supreme Court precedent prohibit discrimination against those who flout gender stereotypes arguably support protections for LGBTQ persons, the plain text of Title VII of the Civil Rights Act of 1964 only mentions “sex,” and not all courts and legal commentators agree that the statute covers sexual orientation and gender identity. Newly appointed EEOC Acting Chair Victoria Lipnic has voted against allowing federal employees to pursue sexual orientation discrimination claims in her prior role as Commissioner.

Where federal statutes leave gaps, others fill the void; when federal agencies take a hands-off approach toward guidance and rulemaking, state and local governments are called upon to fill these gaps. While many state and local governments now prohibit sexual orientation discrimination, efforts to protect gender identity have met greater resistance. In 2015 alone, 44 anti-transgender bills were filed in 16 states. North Carolina’s infamous “bathroom bill” restricts people in state-operated buildings to restrooms matching their birth certificate sex assignment. Texas is poised to pass a similar bill, and the rescindment of the transgender public school guidance could empower other states to follow suit. More progressive state and local legislatures may feel a sense of urgency to pass new protections or strengthen preexisting one, especially since the scope of some proposed bathroom bills, including the pending Texas bill, include places of public accommodation.

Next Steps and Best Practices

While the recent actions of the Trump administration have created much uncertainty for LGBTQ people (and we at HR Legalist do not proclaim legal clairvoyance), we do recommend that employers consider the following next steps and best practices moving forward:

  • Review your own policies concerning employee restroom use, or, if you have no preexisting policies, create one that satisfies EEOC guidelines.

While it is understandable to speculate over the life expectancy of the EEOC guidelines as currently written, they should be treated as best practices, but not the law of the land, until declared otherwise. Although these guidelines are not formally binding, most judges grant strong deference to agency interpretations of federal laws.  Assuming that federal judges will now disregard these interpretations, as Judge O’Connor did in entering the nationwide injunction that stayed the former transgender public school guidance, is a risky gamble.

  • Pay close attention to state and local laws that already protect sexual orientation and/or gender identity discrimination or require equal bathroom access for transgender individuals.

The EEOC does not consider contrary state or local laws a valid reason for failing to abide by its guidelines, including those relating to LGBTQ individuals.  However, while antidiscrimination laws set a “floor,” state and local governments are free to “raise the ceiling.”  For instance, Philadelphia, a leading proponent of LGBTQ protections, requires all single occupancy restrooms in bars and restaurants to be designated gender neutral. Keep an eye on pending state and local legislation regarding LGBTQ issues, and be prepared to see an increase in legislative activity for the foreseeable future.

  • Ensure that employees have a clear, and understood, pathway for voicing concerns regarding discrimination and retaliation in relation to equal bathroom access, and consider diversity training to dispel myths regarding LGBTQ individuals.

The office water cooler is a natural hotbed for political discussion, and the Trump administration’s recent civil rights activities are no exception. However, although almost four percent of Americans now identify as lesbian, gay, bisexual, or transgender, myths regarding sexual orientation, and especially gender identity, remain persistent. Employers should keep an eye on the office political climate and ensure that discourse remains civil and LGBTQ persons do not feel marginalized or unsafe. If it is budget-feasible, LGBTQ diversity training may be considered as a preventative care measure. Employees should also have a clear means for raising concerns or initiating complaints regarding these issues if they feel discriminated against, or harassed, without fear of retaliation.

Conclusion

As an ounce of prevention is worth a pound of cure, we at HR Legalist urge readers to reach out to preferred legal counsel and consider how these, as well as other, recent changes may affect your business. Presidential administration turnovers always create uncertainty, but with proper planning and intervention, your business can continue to run with minimal disruption.

Stay tuned to the headlines, and come back to HR Legalist for further updates on this, along with all other, major labor, employment and immigration law updates.


Alexander BatoffAlexander V. Batoff focuses his practice on counseling clients on federal and state employment laws and regulations and defending them in litigation.  He may be reached at 215-665-3048 or alexander.batoff@obermayer.com.