Transgender in the Workplace: The EEOC as Social Engineer

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bathroomIt’s an issue all employers face or will face—how, if at all, should we accommodate an employee who gives us notice that he or she is transgender and will be coming to work as a person of the other gender. (This morning on the news, I heard of a lawsuit against the federal government by a citizen who objected to having to identify as either gender.) In workplaces where the dress code requires only “professional attire” or a similar gender neutral description, the issue doesn’t seem too deep. (As a federal judge is reported to have said, “the sun will still rise tomorrow” even if a particular employee changes gender presentation.)  

But then, the employer thinks about restrooms or locker rooms. Can employers require transgender employees to use a restroom or locker room designated for persons with similar genitalia. Can employers require transgender employees to use gender-neutral, single user restrooms or family restrooms. How far should employers go to protect social norms of gender-specific privacy in the restrooms and locker rooms?

The EEOC has offered guidance on this issue. Employees are entitled to have access to a restroom, and denying access to a restroom designated for women, to an employee who identifies as a woman, is sex discrimination. See EEOC, “What You Should Know About EEOC and the Enforcement Protections for LGBT Workers” (last visited July 21, 2016). The same can probably be said for locker rooms. 

In one case involving a federal employee, the EEOC went further and suggested how employers should communicate with transgender employees and others in the workplace over these sensitive restroom issues:

[Employers] are certainly encouraged to work with transgender employees to develop plans for individual workplace transitions. For a variety of reasons, including the personal comfort of the transitioning employee, a transition plan might include a limited period of time where the employee opts to use a private facility instead of a common one. 

Circumstances can change, however . . . . [Employers] should . . . view any plan with a transitioning employee related to facility access as a “temporary compromise” . . . .

We recognize that certain employees may object - some vigorously - to allowing a transgender individual to use the restroom consistent with his or her gender identity. . . . But supervisory or co-worker confusion or anxiety cannot justify discriminatory terms and conditions of employment. Title VII prohibits discrimination based on sex whether motivated by hostility, by a desire to protect people of a certain gender, by gender stereotypes, or by the desire to accommodate other people’s prejudices or discomfort. 

Lusardi v. Dep’t of the Army, EEOC Appeal No. 0120133395, 2015 WL 1607756 (Mar. 27, 2015). 

In short, the EEOC’s view is that transgender employees have a right to access the restroom or locker room designated for those who share the employee’s gender identity. If an employer has visitors or other employees who object to using a shared restroom, the employer may suggest the objecting employee use a single-user or family restroom. 

To put a fine point on it, employers are free to offer special accommodation to employees who suffer from gender-based shyness, but the accommodation cannot restrict the rights of their transgender co-workers. 

This is an evolving area of law, and we will be keeping a close eye on any developments. In addition, purely private clubs are exempt from some federal civil rights laws, but in many states there are parallel laws from which they are not exempt. Regardless of whether the club is exempt from any such laws, all employers will be faced with conflicting rights and interests of a variety of employee populations, and the transgendered employees will continue to be one of those populations.

William A. Wright is a partner in the law firm of Sherman & Howard L.L.C. in Colorado and Arizona. Bill may be reached at (303) 299-8086 or by email at wwright@shermanhoward.com. This article is for informational purposes and is not legal advice.

Finding & Retaining Staff

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training photoWhat do a radio announcer, a cake decorator, a railroad operator and a theatre teacher have in common?  Believe it or not, they all have successful careers in club management and are all part of the success of the private club I presently manage. There are of course essential talents needed for various skilled positions, yet when adding to staff, do not discredit lack of experience in a certain area to mean lack of dedication. Talent exists in all shapes, sizes and forms so it is important to maintain an open mind and keen sense of emotional intelligence when adding to the team. The lesson here is, when it seems as if good help is nowhere to be found, don't be afraid to think outside of the box when looking to add to your team.

As a candidate, a positive attitude and enthusiasm for a position are a primary quality to show during the hiring and interview process. All the rest can be learned and taught with time. As managers, being able to recognize those candidates with these qualities is a valuable skill. Successfully hiring individuals from unlikely professional backgrounds, who show great potential to make a positive contribution to the team greatly contributes to lower employee turnover rates and can even improve morale with a contribution of new perspectives and ideas.

When interviewing candidates, read between the lines and connect the dots in career paths by ask questions regarding job changes and unusual moves. But above all, look for the "fire" and those intangible qualities in a person and be willing to take a chance. All the rest can be taught. If ever in doubt, the use of personality profiles are quite valuable in assisting in the hiring process if there is even a hint of trepidation in filling an important role. Getting the "right people on the bus" can take some time and mistakes can and will be made. That being said... it is always worth it. 

Once new talent is brought on board, employees need to be trained and trained well. Never assume that someone will simply know what to do by watching others in their work group. Initiative is one thing, but proper on boarding and ongoing training programs assures a new employee has been set up for success with the proper tools and resources to do the job well. This means that opening and closing procedures, checklists and well defined objectives and expectations need to be explained in detail.

And remember, as time passes, don’t get too busy to value each individual on the team. In addition to employee recognition programs, a simple wave "hello," 'happy birthday" and "thank you" expressed with a sincere smile speaks volumes.


Dana Dichara headshotDana R. DiChiara, CCM, CCE, has been working at Mountain Brook Club in Birmingham, AL for the past sixteen years, leading in the role of general manager since 2008. She is a hospitality professional with a diverse background ranging from private clubs, universities, cruise ships, dinner theatres and amusement parks. Dana is currently serving her third year as president of the Alabama Chapter of the Club Managers Association of America.

3 Summer Tips to Keep Your Communication Cool!

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07.12.16 Summer

Summer is the Saturday of the year! The longer days of sunshine along with the fun outdoor activities can bring promise and adventure to this season. Unfortunately, the increased temperatures and more people out and about can cause an increase in impatience and shorter tempers. This phenomenon is such a nomenclature it has become incorporated into our vernacular through common expressions/terms such as:

  • Hot headed
  • Cool headed
  • Steamed (up)
  • Hot under the collar
  • Getting red hot
  • Blow off some steam
  • Keep your cool
  • Cool as a cucumber
  • Seeing red

According to an article posted on PsychCentral.com, “27 percent of us are summer haters. Summer haters are those who are more likely to get angrier when the temperature exceeds 90 degrees.”

In other words, for about 3 out of 10 people, the hotter they get due to the temperature the hotter they get emotionally. Read more...

Personal Foundation: Seeing the Positive Side

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07.05.16 Positibity

As I begin to write this, the seventh article in this ten-part series about personal foundation, I think it is a good time to review why building a strong personal foundation is important at all. Some people would argue that it is possible to be successful without having some of the elements of a personal foundation that I have been talking about. Some people might be able to site examples of people who have been very successful and yet may not have had integrity, or, as it relates to this article, they may know people who have achieved success and yet seem negative or pessimistic. The thing I want you to know about a foundation is that when it is in place it serves to support or sustain that which has been built on top of it.

I have used the following metaphor before, but I think it is a powerful one. The size of the foundation you build needs to be proportionate to the structure you are building. A tent doesn’t need much of a foundation, a two story home needs a strong foundation and a skyscraper needs a deep, strong, solid foundation. If you are building a small life of little consequence you may not need to spend a lot of time on a foundation. If you are set on building a big life, one of consequence, whether that means building a career of excellence in an industry, building wealth, being an amazing parent or building strong relationships, foundation makes a difference in supporting what you have built.

Developing the ability to see the positive side of things that happen in our lives is an important part of building our foundation. You may already think that you are a person who has a very positive outlook on life and to a certain extent you may be right, but some would say that a positive thinking person is a person with a positive veneer on top of a lot of negative programming. Think about that. Read more...

Are You “Millennial Ready?” How the Golf Industry Can Help Prepare You

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06.28.16 Golf

Millennials (ages 18-34) are having a sizeable impact on the golf industry. According to the National Golf Foundation, there are 6.2 million participants from this age group, or 28 percent of all golfers, who are playing about 100 million rounds per year in the US. Additionally, they spend about $5 billion annually on golf. This includes green fees, which have jumped from 12.6 rounds per year in the 1990’s to 14.7 in the 2010’s.

There are several reasons why golf is attractive to millennials. Many enjoy the opportunity to be outside and the traditional values of the game. For others, rising stars, innovative brands, exciting events, relaxed rules and forms of the game like Footgolf are helping to draw interest by showcasing golf as “fun, young and cool.”

GOLF 20/20, the industry’s trade organization administered by World Golf Foundation, is focusing considerable effort on encouraging this age group to pick up the game. Recently, the “Millennial Task Force” was created to increase awareness, interest and participation in golf through industry education, non-endemic media outreach, digital campaigns and exciting events where the game has previously not had a presence or been included in the conversation. Read more...

Personal Foundation: Stop Tolerating

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06.09.16 Tolerate - 175

The sixth piece of the puzzle in our personal foundation journey is the concept of eliminating tolerations. As human beings we tolerate a lot. Club managers tolerate a lot. So let’s begin by understanding what toleration is.

Toleration is simply something we’re putting up with. It may be something small or perhaps something that brings much bigger consequences, but for a number of reasons we decide that it’s not important enough to deal with. When I say, “we decide,” this is an important point to understand. We need to see that we have made a choice when we are tolerating something. We may view toleration as simply something that we haven’t done anything about but that in itself is a choice. To have this make more sense, let’s think about some examples of things that we might be tolerating.

Maybe we’re tolerating poor performance from one of our employees. Maybe we’re tolerating the unacceptable behaviour of a board member or any of our members. Perhaps were tolerating that we haven’t had much balance in our lives lately. Maybe we’re tolerating the behavior of a teenager that seems unacceptable. Some are tolerating expanding waistlines, rising cholesterol levels or blood pressure that is through the roof. We could be tolerating a squeaky cupboard door. A tear in a carpet. Or an area on a wall that needs to be repainted. Read more...

The Battle Between Healthy and Toxic Workplaces

(Interpersonal Skills, Leadership) Permanent link
05.24.16 Hazmat

An interesting juxtaposition has developed -- the simultaneous focus in the world of work on toxic workplaces and creating positive work environments.

Our book on toxic workplaces and the subsequent training we created on how to avoid becoming a toxic workplace (or survive one you are currently in) are growing in popularity and interest. And I am asked more and more to speak to professional associations and write on the topic.

At the same time, there is a growing body of literature on how to create a positive workplace environment (sometimes labeled as workplace culture or climate).

One might mistakenly conclude that the two types of work settings are just opposites of one another:

  • If you create a positive atmosphere, the workplace won't be toxic, OR
  • If a work environment isn't toxic, then it must be a positive environment.

Neither conclusion is necessarily true. Why?  Because a truly toxic workplace is comprised of more than negativity alone (poor communication, dysfunctional patterns, lack of accountability). Similarly, there can still be lot of unhealthy communication, decision-making and leadership even when people relate in a cheerful manner. Read more...

“Achieving Favorite Place Status”: How À La Carte Dining is at the Core of a Club’s Success

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05.17.16 Dining

In our ever shrinking and competitive world of member owned private clubs today we, 'The Club' have to be smarter, better, more in tune and aligned with our members than ever before. Clubs can no longer be singularly focused; the best golf course, a great tennis community, a family-centric summer swim and camp program. We have to be all of these things plus, we have to focus on what really is the catalyst that connects all members to their clubs, we must be their Third Place or, said differently, one of their Favorite Places where they seek and yearn to hang out.

The definition of Third Place has been around since Ray Oldenburg introduced it in his books The Great Good Place in 1989 and 1991. He introduces and argues that third places are important for civil society, democracy, civic engagement and establishing feelings of a sense of place. "Peoples' first and second places are their homes and their workplace – where people may actually spend most of their time. Third places, then are 'anchors' of community life and facilitate and foster broader, more creative social interaction. Societies in the past have informal meeting places, what is new in modern times is the intentionality of seeking them out as vital to an individual's societal needs."

Club managers and club boards must evaluate today if their club is amenity-driven or favorite place-driven. Are your members only at your club when they are engaged in their favorite sport activity or are they there hanging in common spaces interacting with their families and fellow members enjoying the frivolity of social engagement? There are many places club members can enjoy a great game of golf, fitness workout, tennis matches or a fun family outing with their children. But finding true Third or Favorite Places takes on a different paradigm. This is where private clubs have such an outstanding opportunity. Read more...

This information is provided for informational purposes only. The contents are presented with no warranty, either expressed or implied by the Club Managers Association of America. No legal responsibility is assumed for the outcome of decisions, commitments or obligations made on the basis of this information. If your club is faced with a question concerning legal issues, you should contact the club’s legal counsel for the specific application of the law to your situation.