Hunton Employment & Labor Perspectives

CNN is reporting that a Colorado school has decided that a 6-year-old boy, who identifies as a girl, and whose family is raising her as a girl, must use the boy’s bathroom or the staff or nurse’s bathroom for sick children.  The family is worried about the stigmatizing impact this would have, and is worried about bullies, and has decided to keep the child home for now. 

This story brings the national spotlight on an issue that employers are increasingly facing in the workplace. Transgender is a protected class in many cities and states across the Country, including California. Employers often face the same question the Colorado school is grappling with. Which bathroom should the transgender employee use?  The courts have not provided a definitive answer to this question, and there is little to no guidance from cities or states on this issue. Transgender groups have published a number of opinions on the subject. Options will often depend on the employer’s workplace, the number and types of bathrooms that are available, and the employees at issue.  What is considered “reasonable” in one workplace, may not work in another, and employers have to be careful about the issue of stigma that is raised by the Colorado girl’s parents. As a protected class, there will always be a question of whether the transgender employee was discriminated against somehow by the employer’s decision on which bathroom that employee can use.