Employees, Gender Identity and the Washington State Human Rights Commission

With a fair amount of publicity, the Washington State Human Rights Commission’s recently placed into effect a regulation that guarantees access to restrooms, locker rooms, and other such facilities according to a person’s gender identity.   The regulation affects public and private buildings, including schools, restaurants, stores and most places of employment.  The regulation makes it unlawful to prohibit transgender individuals from using public bathrooms, showers or changing areas designated for the opposite biological sex.  The Commission’s regulation impacts businesses with eight or more employees, and generally provide that entities may not force a person to use facilities that are inconsistent with their gender identity.  

The Human Rights Commission has multiple regulations governing gender identity in employment situations.  Some of the Commission’s regulations, and their impact on employers, are outlined below.  More information is available on the Human Rights Commission’s website.

Can an employer fire or refuse to hire an individual because of that person’s gender identity?

No. Employers may not consider gender identity when making hiring, firing or other employment related decisions. Employers are also prohibited from discrimination in compensation and other terms of employment based on gender identity.

How does a company’s dress code apply to transgender employees?

Employers should permit employees to dress in a manner that is consistent with their gender identity or expression, while complying with dress codes and grooming standards.

Generally, employers have a right to establish employee dress and grooming guidelines during work hours if they are reasonable and serve a legitimate business purpose. Such a purpose may include safety reasons or to maintain a particular identity or a certain image for customers.

Employers can impose dress and grooming standards as long as the codes do not unduly burden one sex.  Employers are encouraged to make that dress code gender neutral; men and women would be required to wear the same uniform, for example, or the dress code would not have any requirements such as skirts or high heels.

An employer should not require a person who has transitioned or is transitioning from male to female to dress and present as a male, and should not require a person who has transitioned or is transitioning from female to male to dress and present as female.

What restroom should a transitioning employee use?

If an employer maintains gender-specific restrooms, transgender employees may use the restroom that is consistent with the individual’s gender identity.

Is an employer required to change the name and/or sex of a transitioning employee in company records?

Records kept by the company for legal purposes (tax forms, payroll records, workers' compensation documents, etc) should reflect the employee’s legal name. For all less formal forms of identification, employers should ask a transgender employee what name and sex- specific pronoun he or she prefers, and use them consistently. An employer should then make sure that all non-legal references to the employee’s name and gender (such as e-mail, photo ID, organization charts and directories, business cards, and workplace signs) are consistent with the employee’s gender identity and expression.

When an employee transitions, what are an employer’s responsibilities with respect to informing other employees?

The privacy of the transitioning employee must be respected, but with some transgendered individuals, there may come a time when the transition will become obvious or the employee will wish that their co-workers become aware of the transition. The concept of a transgendered individual may be a new one to many people. They may have misconceptions about the need to transition or appropriate behavior towards transgender co-workers. Just like with sexual harassment, employers are responsible for non-discrimination, maintaining a non-hostile work environment, establishing clear policies and complaint procedures, and educating all employees as to the policies.

Brian A. Walker helps businesses and individuals in employment, business, and real estate related litigation and transactions from the Wenatchee office of Ogden Murphy Wallace PLLC. You can reach Brian at bwalker@omwlaw.com or at (509) 663-1954.