The Seventh Circuit Court of Appeals’ landmark decision in Hively v. Ivy Tech Community College of Indiana (Case No. 15-1720), which established that Title VII of the Civil Rights Act of 1964 bans discrimination on the issue of sexual orientation, may be an indication that the Courts are willing to adopt much more inclusive positions towards gay workers and may, as well, keep moving in that same direction with regard to transgender employees. It is quite clear from a review of print and social media that LGBT advocates are becoming much more aggressive in the challenging of perceived discrimination in the workplace. Clearly, the Legal Basis behind the Seventh Circuit Court of Appeals Decision in Hively could also be used in future Cases to widen the scope of protection for transgender workers.

What are some of the “practical issues” that Employers may face in the future?

Q: If a heterosexual male refuses to sit next to a gay male or a transgender coworker, should or can the Manager change the seating assignment for any of the employees?

A: The simple answer is “No.” Should the same complaint be made about sitting next to an African American or Hispanic Employee, there would be a clear basis for the refusal of the request and that same situation should prevail here.

Q: Should there be open discussion about a transitioning workers’ situation?

A: Absolutely not. While there should be, and could be, discussion within the Human Resources Department or other Managers with regard to the transitioning employee’s situation, there should be no communication to any other employees until specifically authorized by the involved transitioning employee. This is not a “gossip’s sake” scenario.

Q: Can the Employer who has an established dress code require that the transitioning employee not dress according to their gender identity?

A: Absolutely not. While most Employers have a legal right to set reasonable and gender based dress codes, the Employer must allow an individual who identifies as a male to dress as a male in accordance with the dress code and an individual who identifies as a female to dress as a female. While the Employer could prohibit the transitioning employee from mixing and matching two (2) uniforms (shirt and tie with a skirt), that is one of the few limitations. The individual’s gender identity must determine where they fit in the dress code.

Q: Can the Employer prohibit the transgender employee from using the bathroom of their choice because of employee complaints?

A: As one has seen with the North Carolina scenario purporting to deal with “allowed bathroom use”, this is an area fraught with difficulty. The Employer must allow the worker to use the restroom that matches their gender identity or make available single occupancy unisex facilities. It has long been part of the European culture that individuals of different sex use the same restroom facilities. Just because an individual who is complaining has some discomfort with regard to the facilities use by a transitioning employee, that will not be sufficient to force the transitioning employee to not use the facility.

Certainly time are a’changin and it is becoming more and more complicated to navigate the day-to-day obligations of an Employer vis-à-vis its workforce. It could be that an old bromide has application – treat Employees as you, the Employer, want to be treated – with honesty, fairness and respect!

Questions? Contact Attorney Walter Liszka in our Chicago office at (312) 629-9300 or by email at waliszka@wesselssherman.com