In Bob Dylan’s song, “The Times They Are A-Changin,” he sang:
Come senators, congressmen
Please heed the call
Don’t stand in the doorway
Don’t block up the hall
For he that gets hurt
Will be he who has stalled
There’s a battle outside
And it is ragin’
It’ll soon shake your windows
And rattle your walls
For the times they are a-changin.
In Bruce / Caitlyn Jenner’s case, it is not only Congressman who may get involved, but various federal agencies have already taken action on transgender issues. OSHA, at the request of the National Center for Transgender Equality, published “A Guide to Restroom Access for Transgender Workers.” The guide is based on the belief that all employees should have access to restrooms based on their gender identities, not their gender at birth. OSHA states that: “The core belief underlying these policies is that all employees should be permitted to use the facilities that correspond with their gender identity. For example, a person who identifies as a man should be permitted to use men’s restrooms, and a person who identifies as a woman should be permitted to use women’s restrooms. The employee should determine the most appropriate and safest option for him-or herself.”
I never thought I would be quoting TMZ in one of my blog articles, but here goes: “Bruce Jenner became a member of Sherwood Country Club in Thousand Oaks, CA 15 years ago. He golfed there almost every day and established close relationships with his golfing buddies. It’s a very exclusive, ritzy club with an initiation fee ranging between $150,000 and $300,000.” The Club has decided that Jenner can no longer eat in the men’s only grill area. Although the EEOC will not get involved in this particular situation since it is not work related, the EEOC has and will continue to investigate charges filed by transgendered employees who allege that they have been discriminated against due to their transgender status. In fact, the EEOC has identified transgender discrimination as a “priority”. As a general rule, once a person begins working in his/her new gender role, they should be treated as a person of their gender identity, not their birth gender. However, this is a complicated process and legal counsel should be sought.
NEW FMLA FORMS
Should an employee decide to undergo surgery to complete his/her gender change, they may want to file for FMLA leave. Without addressing whether such a procedure would even qualify for FMLA leave, it should be noted that the DOL has implemented new FMLA forms. These forms can be found on the DOL website.
LGBT (Lesbian, Gay, Bi-sexual and Transgender) issues in the workplace will continue to be the focus of the EEOC and other governmental agencies. Whether an employer approves of such conduct or not is immaterial: the law is the law. At this time, Alabama does not have any laws protecting LGBT employees. However, there are numerous Federal laws and regulations that provide protection to LGBT employees, and other states and municipalities around the country provide similar protection. The upcoming Supreme Court decision involving same sex marriage, if it holds that SSM is legal, will also have an impact on employers in many areas, including the FMLA, EEOC and benefits. Employers must be careful when making decisions involving LGBT employees. “The Times, They Are A-changin.”