JVC: Complying with transgender legal developments

Guidance from the U.S. Department of Labor regarding restrooms
In its guidance, the U.S. Department of Labor advised that all employees, including transgender employees, should have access to restrooms that correspond to their gender identity--their sense of which gender they are. Employers should not impose unreasonable restrictions on employees’ use of restroom facilities by, for example, requiring them to use gender-neutral or other specific bathrooms and thus segregating them from other workers.

Moreover, transgender employees should determine the most appropriate and safest option for themselves, and employers should not obligate them to provide any medical or legal documentation regarding their gender identity. Employers who fail to comply with the guidance put themselves at risk of receiving a citation from OSHA. They would also be vulnerable to regulatory or private-party action under Title VII of the Civil Rights Act.

Transgender visitors to retail stores covered by some state and local laws
At the local level, 18 states and the District of Columbia have enacted laws that clearly prohibit transgender discrimination. In October of this year, the governor of New York State issued regulations banning harassment and discrimination against this protected class. Additionally, at least 200 cities and counties now ban gender identity discrimination. 

The laws of many of these jurisdictions apply not only to employees, but also to individuals visiting places of public accommodation--establishments that provide goods and services to the general public, including retail stores.

In New York City, for example, it is a discriminatory practice for a public accommodation to refuse facilities or services based upon a person’s actual or perceived gender. Pursuant to this law, public accommodations, including stores, should allow individuals to use restrooms that are consistent with their gender identity or gender expression. They should also allow them the use of restrooms without requiring identification to prove their gender. Additionally, pursuant to the New York City law, individuals should be addressed with names and pronouns appropriate to their gender identity.

What employers and stores should do
Employers should adopt and implement policies that address the use by transgender employees of restroom facilities. The policy should make clear that a transgender employee will not be required to use any particular restroom. It should describe the options available to the employee. Next, train managers and human resources personnel regarding this policy. Make clear that transgender employees may use the facility where he or she feels safest and most comfortable.

Since stores are places of public accommodation, owners or managers should learn the law in their jurisdiction. If state or local laws prohibit transgender discrimination in public accommodations, such as stores, they should adopt and implement policies regarding restroom use, as described above. Be sure that employees are appropriately trained on the use of restroom facilities by transgender customers.

Conclusion
To stay in compliance with laws relating to discrimination in the workplace and in places of public accommodation, jewelers should stay current regarding all applicable regulations, and make sure that employees are trained on relevant law. The JVC is available to help the jewelry industry fulfill its obligations by providing educational resources. For more information, visit JVC’s website at www.jvclegal.org, or call 212-997-2002.

Suzan R. Flamm, Esq. is senior counsel of the Jewelers Vigilance Committee. Email her at suzan@jvclegal.org.