I have posted on the dangers of an employer being the potty police before. Now comes news that Hobby Lobby, already known for their conservative and religious based employment policies, has run afoul of the Human Rights Commission of the State of Illinois.
Meggan Sommerville has been an employee of Hobby Lobby since 1998. Since 2007 she has been presenting as transgendered. In 2010 she officially informed Hobby Lobby that she was transitioning from male to female and Hobby Lobby human resources changed her personnel records and benefit records to female. Hobby Lobby indicated to Ms. Sommerville that she could not use the women’s restroom at Hobby Lobby until she produced legal authority mandating its use.
Later in 2010 Ms. Sommerville legally changed her name and her drivers’ license was also changed to identify her as a female. She also obtained a Social Security card with her new name. Ms. Sommerville presented all of this legal documentation as well as a letter from her health care providers documenting her medical treatment.
At that point, Hobby Lobby changed its requirement and told Ms. Sommerville that she would not be permitted to use the women’s restroom in the store until she underwent surgery (a departure from their earlier communication that she needed to present legal authority).
The Illinois Human Rights Commission made the following finding:
The evidence in this case establishes that Respondent’s decision forbidding Complainant access and use of its women’s restroom violated the Act, under the direct method of proof. Respondent’s motive for its decision was and is Complainant’s sexual related identify, female, a decision that should have been made irrespective of her designated sex at birth, male.
Moreover, the Human Rights Commission rejected concerns of the employer’s other employees and stated:
Respondent also raised a concern about a woman employee expressing “discomfort” with Complainant being present in the women’s restroom. However, a co-worker’s discomfort cannot justify discriminatory terms and conditions of employment. The prejudices of -co-workers or customers are part of what the Act was meant to prevent.
Finally, the Commission also addressed Hobby Lobby’s creation of a unisex restroom and its requirement that Ms. Sommerville only utilize that restroom:
Respondent’s prohibition and/or segregation of Complainant to a “unisex” restroom is an adverse act and subjects her to different terms and conditions than similarly situated non-transgender employees. Access to restrooms, if available, is a major and basic condition of employment.
- Employers should provide convenient and unfettered bathroom access. Requiring employees to travel to use a restroom or to limit their liquid intake is inappropriate and against OSHA regulations.
- If possible, provide all employees with neutral sex or single sex toilet facilities (this is the private family care bathroom that is often available in public settings that is private and can be utilized by either gender).
- Permit transgender employees to use the restroom for the gender they are presenting.
Management should communicate to all employees that a transgender employee or customer is permitted to utilize the bathroom that matches the gender they are presenting.
- Employers should review their nondiscrimination policies and make sure that they include language prohibiting discrimination based on transgender and gender nonconformity.
Dori K. Stibolt is a partner with the law firm of Fox Rothschild LLP. Dori defends and counsels management in labor and employment litigation matters pertaining to wage and overtime claims, discrimination, harassment, retaliation, leave/restraint, and whistle-blower claims. You can contact Dori at 561-804-4417 or firstname.lastname@example.org.