Have You Updated Your Bathroom Policies to Allow Access Based on Gender Identity?

Have You Updated Your Bathroom Policies to Allow Access Based on Gender Identity?

Effective October 1, 2016, Massachusetts will prohibit discrimination in public accommodation based on an individual’s gender identity.   This law will affect not only places of accommodation open to the public, but also will require access to bathrooms in the workplace based on gender identity.  The Massachusetts Commission Against Discrimination has made clear that an employer’s failure to increase employee awareness and allow access to restrooms based on one’s gender identity could subject employers to charges of discrimination, harassment, and retaliation.

Since July 1, 2012, Massachusetts has prohibited discrimination in employment based on gender identity under M.G.L. 151B, the Massachusetts Unlawful Discrimination law.  On July 11, 2016, Governor Charlie Baker signed the “Act Relative to Transgender Discrimination” into law with an effective date of October 1, 2016.  The new law amends Massachusetts’ existing law regarding discrimination in public accommodations (M.G.L. c.272, §92A) by inserting “gender identity” as a class protected from discrimination in public accommodation and by inserting the following clause:

Any public accommodation including without limitation any entity that offers the provision of goods, services, or access to the public that lawfully segregates or separates access to such public accommodation or other entity based on a person’s sex shall grant all persons admission to and the full enjoyment of such public accommodation or other entity consistent with the person’s gender identity.

The new law grants the Massachusetts Commission Against Discrimination (MCAD) authority to adopt regulations and to enforce the provisions of the law.  On September 1, 2016, the MCAD issued guidance on gender identity.

The MCAD has long held that discrimination against transgender individuals could constitute unlawful sex and disability discrimination.  The 2012 amendment of M.G.L. c.151B to include “gender identity” and the 2016 amendment of M.G.L. c. 272 formally codified the MCAD’s longstanding practice of prohibiting discrimination on the basis of gender identity in places of employment and public accommodation.  The MCAD specifically states in its guidance that: “Prohibiting an individual from using a restroom or other sex-segregated facility consistent with their gender identity is a violation of G.L. c.272, §92A.”

Employers must assure workplaces are in compliance with the new law by October 1, 2016.  In its guidance, the MCAD “encourages employers…and all entities subject to the law to foster an inclusive and welcoming environment” by following the American Bar Association’s Best Practices for Promoting LGBT Diversity (published in 2011) including: (1) Revising  non-discrimination,  equal  opportunity,  non-harassment, and  other  employment-related policies to include a statement that discrimination and harassment on the basis of gender identity is prohibited; (2) Updating  personnel  records,  payroll  records,  email  systems, and  other  documents  to  reflect employee’s  stated name   and   gender   identity,   and   ensure   confidentiality   of   any   prior documentation of an employee’s pre-transition name or gender marker; (3) Prohibiting  derogatory  comments  or  jokes  about  transgender  persons  from  employees,  clients, vendors  and  any  others, and promptly  investigate  and  discipline  persons  who  engage  in discriminatory conduct; (4) Using names, pronouns, and gender-related terms appropriate to employee’s stated gender identity in communications with employee and with others; (5) Avoiding  gender-specific  dress  codes  and permitting  employees  to dress  in  a  manner consistent  with their gender identity; (5) Providing the public and employees access to any sex-segregated facility, i.e. bathrooms, locker room facilities, based on the employee’s stated gender identity; (6) Incorporating in diversity, anti-discrimination, and anti-harassment trainings information about transgender individuals and employees, whether or not there are currently transgender employees, or employees who have self-identified as transgender, at the workplace or in the place of public accommodation; and (7) Investigating and taking appropriate remedial action when on notice of harassing or discriminatory conduct in the workplace.

All employers should review their handbooks, policies, and personnel records to assure compliance with the new MCAD Guidelines. Further, employers should assure that employees are educated about gender identity rights which include access to sex-segregated facilities, including bathrooms, as of October 1, 2016.

If you have questions or need assistance reviewing and revising policies or in training employees, please contact any member of the Najjar Employment Law Group, P.C.

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