A proposed bathroom bill in the Tennessee legislature in March was withdrawn by its sponsors, but the idea is not dead. We spoke with Littler Mendelson shareholder Joycelyn Stevenson about what such a bill might mean for employers in the state — which is to say, commercial space tenants.
Stevenson is in the Nashville office of the firm, which is the largest U.S.-based specialist devoted to representing management in employment, employee benefit, executive compensation and labor law matters.
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Bisnow: The proposal was about schools. How would that affect employers?
Stevenson: The Tennessee bill specifically would have affected students in public schools and universities. While the bill didn't directly affect private employers, a bill of that kind could provide a foundation for employers to consider imposing similar restrictions in the workplace, which would directly contradict guidelines provided by the federal government on this issue.
Bisnow: How so?
Stevenson: There's no federal law providing express protection for employees related to gender identity and transgender accommodations. But several federal courts [and] the Equal Employment Opportunity Commission have upheld protections allowing employees to use restrooms in accordance with their gender identity.
Bisnow: What should employers do?
Stevenson: Private employers should review current policies and procedures to make [sure] that employees have avenues to address any concerns related to the use of restrooms at work. Also, it would be prudent for employers to work with human resources to create a strategy for handling requests by employees related to gender identity accommodations, including working with legal counsel to develop appropriate policies and talking points.
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Bisnow: How have recent executive orders changed things?
Stevenson: The federal government rescinded the guidance on bathrooms for public schools, but it retained the executive order extending anti-discrimination protections for federal contractors, so there's still support in the employment context at the federal level for some level of protection for employees.
Bisnow: What now, even without a new Tennessee law?
Stevenson: The backlash and strong feedback on the bill should at a minimum cause employers to stay on top of any changes in the state and federal law or agency priorities when it comes to gender identity and transgender status. They may also look for strategies on how to respectfully handle issues of accommodation, including developing a business plan that could withstand a legal challenge. Several companies have developed guidelines for the workplace to take a proactive approach to this issue, including creating talking points for managers.
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