Question: We are a Massachusetts employer and have an employee Sam who worked for us for 10 years. Recently he came to the HR Director and said that after he returns from his two week vacation, he will be Samantha and wants to be treated as female. He will dress as a female and wants to be regarded as a female. Are we legally required to let Samantha use the ladies bathroom, even if it makes other female employees uncomfortable?
Answer: Yes. On November 23, 2011, Massachusetts Governor Deval Patrick signed into law “An Act Relative to Transgender Equal Rights.” The new law, effective July 1, 2012, prohibits discrimination on the basis of “gender identity” in employment, education, housing, credit and lending, and makes violence against transgender individuals a hate crime. An employer should permit applicants and employees to access bathrooms and other gender-segregated facilities based on the individual’s stated gender identity. For example, if an employee identifies as female, she should be permitted to use the women’s restroom, regardless of whether she has had gender reassignment surgery. Employers should also use appropriate pronouns and other gendered language that is consistent with an employee’s stated gender identity. For example, if an employee identifies as male, do not refer to the employee as “she” or “her.” Use an employee’s preferred name (whether or not it is the employee’s legal name) in staff directories, business cards, websites, and other internal and external communications and records.
Dave Wilson has spent over two decades litigating wage and hour, employment, real estate, maritime, and general commercial disputes in the state and federal courts of Massachusetts and New Hampshire. Dave spends a significant amount of his time acting as a business partner with his clients, counseling and training them in all areas of employment relations law. Please visit the Hirsch Roberts Weinstein LLP website for more information.