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This is not legal advice, which can only be given by an attorney admitted to practice law in your jurisdiction after hearing all of the facts and circumstances in a particular case.

Tuesday, November 7, 2006

Locker room suit dismissed

One of the bugaboos that one must deal with in creating transgender policy is the idea that transgender employees will enter the bathroom, the locker room or the shower in order to leer at other employees.

The idea that such would be a common occurrence because of the employee's gender confuses gender identity with sexual orientation. Gender identity is a strong and persistent identification with being male or female, and is not the same as sexual orientation, which is the romantic desire to be with a partner of a specific sex. Thus, transgender women (i.e., those who transition from male-to-female) may be of any sexual orientation (straight, gay or bisexual).

Furthermore, everyone has a sexual orientation, but this is not the same as saying that everyone will stare at or proposition members of the desired sex. Just as straight men and women understand that appropriate behavior in the workplace precludes propositioning other members of the workforce willy-nilly, the same is true of gay and bisexual workers. Therefore, companies that allow transgender workers to use the bathroom or locker room of their new sex are not creating a situation ripe for sexual harassment or sexual harassment lawsuits. A recent case shows that the New Jersey courts agree with this assessment.

In the recently decided case of Opilla v. Lucent Technologies (2006 WL 2787047, Sept. 29, 2006), an employee sued for sexual harassment based on the presence of a transgender woman in the locker room of an on-premises health center provided by her employer, Lucent Technologies (though operated by a separate corporate entity). According to the plaintiff, one of her co-workers who was a transgendered female entered the women's locker room and stared at the plaintiff, who was then dressed only in her underwear. When asked how long the incident lasted, plaintiff testified that "[i]t could have been a minute. It felt like a long time." The transgendered co-worker left after another employee entered the locker room and told her to go change on the "other side."

The plaintiff immediately complained to the manager of the Health Center, who told her that he "didn't know what to do about the situation. He didn't know how to direct which locker room [the co-worker] should go into." But he promised her that he would check with Human Resources and "ask them what he should do." It appears, however, that no further inquiry on this matter, however, was taken by the plaintiff or the manager.

The plaintiff claimed that Lucent was liable for sexual harassment because it permitted transgender women to use the locker room, and in addition, that it was responsible for the alleged actions of the transgender woman in this incident. However, the motion judge referenced the legal requirement that the alleged harassment must "alter the conditions of employment" or "create a hostile working environment. She concluded that the one incident in the Health Center was not "severe or ... pervasive enough to make a reasonable female believe that the conditions of employment were altered and the working environment was hostile or abusive." Hence, she dismissed the discrimination complaint against Lucent.

The judge concluded that since the transgendered employee was not a supervisor, the plaintiff could not maintain a hostile work environment claim against her under the New Jersey Law Against Discrimination. The judge also concluded that plaintiff's common law tort claims against her employer Lucent, and against her co-worker, were barred by the Worker's Compensation Act. The appellate court agreed with the motion judge's conclusions, and the case was dismissed.

One caveat: While the opinion seems to specifically validate a corporate policy permitting locker room access, the appellate court specifically noted that it was not addressing that question. (However, I want to note that I think such a policy is unquestionably legal in most states.)

Another lesson to be learned from this case is: talk to all involved parties when you create policies inclusive of transgender employees. Talk to the vendor providing health club services. Talk to the manager of the health club. Talk to the corporate liaison with the vendor.

I did hear rumor of a similar case involving IBM some years ago, which was dismissed in favor of IBM, though I don't know if there was a written opinion.

In regard to company policy, I believe that the thing to keep in mind is that inappropriate behavior in a locker room (or bathroom) is inappropriate regardless of the gender of the actor. This is especially true after Oncale v. Sundowner, the US Supreme Court case in which it is noted that same-sex sexual harassment is actionable. If such behavior is demonstrated, the actor should be subject to the appropriate corrective action, regardless of gender.

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