Our company has recently hired an individual who is gender neutral. These questions have come up from our supervisors and also management. We are hoping you can give some advice regarding some questions we have. The first is related to bathroom access: we have men and women's bathrooms. Do we need to accommodate with a special bathroom? We were told when addressing the individual, not to refer to them as he or she. People will make mistakes with this, so how do we handle it? What reasonable accommodations do we need to do for this individual, and is there training info we can use to educate our employees?
We are unaware of a federal or state employment law in your state requiring the company provide a separate bathroom for the individual to use; they should be allowed to choose which restroom they wish. If the individual expresses a preference for gendered pronouns, then their preference should be respected. We recommend reviewing what was conveyed and/or used by the individual during the hiring process. As to accommodations, generally speaking, there are not defined reasonable accommodations to be offered to this individual, and in fact, the employer should take care not to treat this individual differently than others. If the individual does come forward and ask for a specific accommodation due to a medical condition, for example, then there may be a duty to provide a reasonable accommodation under the Americans with Disabilities Act (ADA) (see Reasonable Accommodation and Undue Hardship Under the Americans with Disabilities Act for more information on reasonable accommodation issues). However, absent a specific request being made the employer should take care not to make an assumption that one is needed.
As to further information about how to address these issues in the workplace, you may wish to confer with your state’s Department of Human Rights, which would be the best starting point for assistance in reviewing whether further information is available in your jurisdiction on these topics, and specifically, whether additional protections have been put in place, as the law in this particular area is changing rapidly. As well, as a general resource for information about discussing gender issues in the workplace like those you reference, you may wish to review the resources available from the Human Rights Campaign as these resources are directed to employers and concern gender issues in the workplace.
Published Date:March 17, 2020
Categories: HR Question of the Month