While the Senate has passed the Employment Non-Discrimination Act (ENDA), its future in the House is less certain. Employers, especially small and medium size employers who have the threshold 15 employees, wait, as they have done with other laws, to see if it is passed. Employers have long recognized that discrimination is not good business. It is expensive; generates unwanted publicity; and is devastating to a company's public image. Employers are concerned that they will be given adequate guidance in terms of what the law requires and that the law's requirements will be reasonable. One concern is with transgender use of rest rooms. There is a provision in the bill that states that nothing in the act shall be construed to to establish an unlawful employment practice based on an actual or perceived gender identity due to the denial of access to shared shower or dressing facilities in which being seen unclothed is unavoidable, provided the employer provides reasonable access to adequate facilities that are not inconsistent with the employee's gender identity. The bill provides that nothing requires the construction of new or additional facilities. To employers, the concern is with the determination of whether they are providing adequate facilities not inconsistent with an employee's gender. Who decides if an employer has provided an adequate facility? What are the guidelines as to what is adequate and what is not? At what stage of transitioning does the individual have the right to use the facility that corresponds to the employee's gender identity? As is reflected by one employer's blog, employers want to have the chance to work any problems out with their employees before being sued. If an employer establishes a procedure where the transgender employee can raise concerns and the employer attempts to address those concerns, will the employer be able to use its attempts at accommodation as a defense? Will the courts recognize that adequate does not mean that the employer has to given the accommodation requested if its alternative is considered adequate? Employers will have to deal with employees who have strong feelings and religious beliefs that oppose ENDA. Dealing with divergent groups will be challenging and may result in decisions that one or the other group does not like. Employers want their efforts to be recognized and to provide some measure of defense should litigation occur. The employers recognize the practical side of compliance. Will the courts and the government recognize the challenges facing employers?
For additional Labor and Employment law insights from John Holmquist, visit the Michigan Employment Law Connection.
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