Accommodating Transgender Guests in Hotel Restrooms, Locker Rooms Is a Balancing Act

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If you work in the hospitality industry, you no doubt realize that for all of the hotel rooms around the globe, there is no room for discrimination. Claims of bias can have devastating consequences on a brand as well as rippling economic effects. To put that into perspective, the NBA’s recent decision to pull its 2017 All-Star game from Charlotte, N.C. because of the state’s enactment of House Bill 2 law, requiring transgender people to use public restrooms as designated by their birth sex, has reportedly cost the Tar Heel state a reported minimum loss of $100 million in economic benefits. But if you have a hotel in Charlotte, you already knew that.

A Steep Ride on the Down Side

“This is why most publicly-owned companies don’t make political statements,” said Dr. Michael Oshins, professor of practice at Boston University’s School of Hospitality Administration. “Statements like this have implications that may be positive or negative, and especially if it’s a value-based decision, they’re likely to lose business because it’s a decision that doesn’t only affect customers and employees, but also investors.”

Taking such a firm stance on hot-button political issues like this one will adversely impact a privately held company’s bottom line, judging from the May results of a CNN/ORC poll, conducted prior to the Justice Department informing North Carolina that House Bill 2 is a civil rights violation. According to the poll, three-quarters of Americans favor laws guaranteeing equal protection for transgender individuals, with 57 percent of those polled saying they oppose laws requiring transgender individuals to use facilities based on their birth gender.

Surrounding Laws

Yet, private enterprise is not directly affected by the North Carolina statute, nor by the U.S. Department of Education’s May-issued guidance instructing public schools to allow transgender students to use bathroom facilities that correspond to their gender identity. So while the hotel industry remains obligated to accommodate the restroom preferences of transgender employees under Title VII of the Civil Rights Act of 1964, they are not legally obligated by the federal government to accommodate transgender guests’ choice to use the restroom in line with their gender identity. Moreover, Title II of this same act does not prohibit “public accommodations”—specifically hotels, motels, restaurants and theaters—from discriminating based on sex, gender identity or sexual orientation. However, 17 states and more than 200 cities explicitly prohibit discrimination based on gender identity and sexual orientation in public accommodations, according to the National Center for Transgender Equality’s September 2014 Transgender People and Access to Public Accommodations. “The social evolution of the transgender community is a civil rights movement and the law and the industry are trying to catch up,” said Stephen Barth, attorney and founder and professor of hospitality law at the University of Houston.

A Quagmire for Hoteliers

In the hospitality business, it’s an even finer line that hoteliers walk between acceding to their transgender guests’ wishes with regard to hotel public facilities without risking the comfort of other guests. “One issue is guest safety and although there hasn’t been a rash of related crimes, there could be if we’re not cautious about this and what about other guests who simply aren’t comfortable with using the same bathrooms as transgender guests?” posited Andria Ryan, partner at national labor and employment firm Fisher & Phillips.

She also pointed out that the issue for hoteliers goes beyond restrooms in public spaces, extending to the locker rooms that are often shared by fitness center and spa facilities and those can pose an even bigger challenge to the hotel industry. “It’s rarely an issue, but if you are talking bout transgender guests, the decision should be proactively made the by the hotel company as to which restrooms and locker rooms will be made available –those in line with the transgender person’s gender identity or neutral facilities—because if a 12-year-old guest walks into the women’s locker room at the spa and she’s followed by a transgender male, is someone going to monitor the situation?” Ryan asked. “We need to think about these situations in advance of when they happen because how is the hotel going to respond when that child’s mother comes out of the locker room screaming?”

There’s no easy solution and finding resolution can also take time considering the number of stakeholder involved. “Independent hotels will want to discuss the locker room issue with their human resources executives and executive management team,” Oshins said. “But at the corporate brand level, the decision is going to involve the brand, hotel owners and hotel management, so it becomes more nuanced in terms of what to do and how that decision is positioned.”

The Easy and Innovative Fix

Where restrooms are concerned, the answer seems to be more straightforward. “The single-stall, unisex bathroom is much more common in Europe and Israel and while it will take time, we’ll start to see those more of those gender neutral facilities,” Oshins said. “The construction costs shouldn’t be too bad for hotel building up front and for retrofitting, it’s still doable, particularly during renovations.”

Barth also noted that having a single common area for sinks and mirrors mitigates risk potential while also driving efficiencies for guests, such as eliminating the age-old problem of long lines for the ladies’ room and no-wait men’s rooms while also creating a more comfortable and safer environment for parents taking small children to the bathroom. “Instead of fighting against these trends, my perspective is that we need to embrace them and use them to create innovations and continue to deliver an overall better experience for all of our guests,” Barth added.

Fisher Phillips

Employers often must take a stand: in court, with employees and unions, or with competitors. Fisher Phillips has the experience and resolve to back up management. That’s why some of the savviest employers come to the firm to handle their toughest labor and employment cases. Fisher Phillips has 350 attorneys in 32 offices located in Atlanta, Baltimore, Boston, Charlotte, Chicago, Cleveland, Columbia, Columbus, Dallas, Denver, Fort Lauderdale, Gulfport, Houston, Irvine, Kansas City, Las Vegas, Los Angeles, Louisville, Memphis, New Jersey, New Orleans, Orlando, Philadelphia, Phoenix, Portland, Sacramento, San Antonio, San Diego, San Francisco, Seattle, Tampa, and Washington, D.C.

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