Massachusetts Gender Identity Law Provides Businesses with an Opportunity to Reflect on Current Practicesost

November 14, 2016

North Carolina made national news this Spring and Summer by enacting legislation requiring individuals to use the bathroom for the gender that matched the gender on his or her birth certificate. Many saw this as the codification of discrimination against individuals on the basis of their gender identity, and North Carolina’s actions made this a significant issue of public discourse over the past months.

If North Carolina was to take a strong position on the issue, so too was Massachusetts. On July 6, 2016, Massachusetts enacted an Act Relative to Transgender Anti-Discrimination. The additional protections provided by the Act took effect on October 1, 2016, and, on September 1, 2016, the Massachusetts Commission Against Discrimination released its Gender Identity Guidance. The Act prevents discrimination on the basis of gender identity in employment, housing, credit and mortgage services, and public accommodations (including public restrooms and locker rooms), and prevents retaliation.

For most employers, the new law and guidance are not going to significantly impact their business. Massachusetts had previously outlawed discrimination and harassment in employment on the basis of gender identity. Thus, even before the new Act went into effect, your employment policies and employee training should have reflected that such conduct was forbidden in the workplace and should have provided for appropriate discipline, including possible termination, in the event that an employee engaged in unlawful discrimination, harassment, or retaliation on the basis of gender identity. The new law does, however, provide you with an opportunity to review your current policies and renew discussions with employees regarding unlawful discrimination, harassment, and retaliation. At a minimum, your policies should be reviewed in light of the passage of the Act to ensure that gender identity is included as a protected classification.

For employers that deal with the public, however, including restaurants and retailers, you must now consider the impact of the changes to the public accommodation law. Those impacts may not be immediately obvious. While it is easy enough to maintain a policy and instruct employees on compliance with the new law, allowing customers to use the bathroom that matches their gender identity, how do you address a complaint about someone’s use of a public restroom? Such a complaint could be rooted in motivations ranging from genuine concern to ignorance or prejudice. Depending on management’s response to the complaint, you could end up with an angry customer, a discrimination claim, bad press, or all of the above.

While the Act broadens the law’s protections to transgender persons, it does not change the fact that discrimination against individuals based on a protected classification is, and for a long time has been, illegal. A restaurant cannot deny services to or otherwise discriminate against an individual because of skin color, national origin, disability, gender, or sexual orientation. Rather than creating a bundle of new rights, the Act should be viewed as merely extending rights that already exist to transgender individuals. Thus, employers should treat their employees and customers the way that they want to be treated and hold them to the same standards as others.

Complaints about a transgender individual using a restroom may range from simple intolerance (“I don’t want to use the bathroom with that person”) to a more substantive complaint regarding the individual’s conduct in the bathroom. Your employees should be trained to both be aware of what the law requires and to advise the manager immediately of the complaint. Your managers should be trained to assess the severity of the complaint and respond appropriately.

There may be two general sources of complaints regarding an individual’s use of a restroom, customer complaints and complaints from employees. As discussed below, depending on the nature of the compliant, an employee’s complaint should be much easier to address. Employees must realize that they cannot discriminate against transgender individuals, and in many cases, that should be the end of the discussion. As with any customer complaint, they will generally be more difficult in a way that does not alienate or offend the complaining customer, while at the same time recognizing the transgender individual’s rights.

If the complaint is lacking in any specifics and simply appears to be an expression of the customer’s unhappiness with having to share the bathroom with the individual, your manager should ask appropriate questions to confirm this fact. Once satisfied that the complaint does not have merit, the manager should thank the customer for bringing this concern to his or her attention and explain to the customer that, under Massachusetts law, the business is required to allow individuals to use the restroom that matches their gender identity. At this point, resolving the situation is dependent upon the manager’s knowledge of the law, as well as his or her ability to address customer concerns in a satisfactory manner.

If, however, the discussion with the customer reveals the possibility that there is potentially illegal or dangerous conduct occurring in a restroom, or any other part of the premises, then the manager should react to the complaint in a manner that is consistent with how the manager would react if that individual were undertaking the same illegal activity in the restroom of his or her birth gender. This could involve additional questions for the complaining customer, potential investigation by a trusted employee, or even referral to law enforcement. Ultimately, for the safety of its employees and customers, the business should have some plan in place to deal with suspected illegal activity on its premises, regardless of the perpetrator. Such a plan should be followed in all instances where suspected illegal or unsafe conduct is taking place. Doing so will help insulate the business from liability for both the underlying illegal conduct and for allegedly applying such a policy in a discriminatory manner.

While it is easy to exercise common sense in theory, that does not mean that, in practice, every customer and employee will do the same. Navigating the potential concerns of customers without making overt judgments regarding their motivations, while at the same time recognizing a transgender individual’s right to be free from discrimination is difficult. Forethought, discussions with management, and adequate training will be necessary to successfully navigate through these waters.