Last month, North Carolina became the first state to openly declare a ban against anti-discrimination policies against transgender individuals. The whirlwind bill was signed into action by North Carolina’s governor, Pat McCrory, a Republican, late Wednesday (4/22) evening. The bill specifically prevents transgender individuals from using bathroom facilities that do not match their gender at birth.
While this decision will have nation-spanning consequences, it also poses a significant issue for employers regarding restroom facilities. How does this issue affect employers who operate multiple facilities located in different states?
Being compliant with local state laws is very important. Should you have a single uniform policy on restrooms when your operations occur more than one state, or should you leave it under the present state law? The uniformity of state laws often creates more problems than you might imagine. Be diligent and make sure that you are in compliance with state laws.
For those employers with a union contract, the better policy is to bargain over the issue. Make sure your contract as a severability clause which protects the rest of the contract if any individual section is deemed unlawful. Lastly, try to negotiate a hold harmless provision. While this might seem impossible, it’s a good goal.
While this political issue may appear at the heart of the news, it’s an issue that has affected companies for decades. In fact, years ago, I worked with a client in Pennsylvania who had a transgendered employee who wished to use the women’s restroom. Through patient mediation, the outcome achieved was favorable for all parties.
How did we solve the challenge? When I arrived at the workplace, my client informed me that the union had filed a grievance. The unionized workers made it clear that if the transgendered employee were to use the women’s restroom, the female employees at the company would be very upset. At the time, state laws were silent on the issue.
We opted to start with mediation efforts, a non-traditional method. By the time we concluded, it was decided that the employee would have access to the women’s restroom but every attempt would be made to use it when the room was empty. By employing a successful mediation, we were able to accommodate her wishes and still appease the other women in the plant. The end goal worked out extremely reasonable. The issue did not negatively impact production and the client was able to satisfy the whole of his employee body.
In North Carolina, the state has made in clear that resolving an issue in a similar manner will no longer be acceptable. This will bring new challenges to companies who have worked through tough issues using this method in the past. While the rest of the nation grapples with the decision made by the North Carolina legislators, employers must be ready to not only comply with the statutes of the state but must guide their employees through this challenging shift.