“Equal access” has meant various things, for various classes of people, throughout the history of the United States. For some, it has meant being able to eat at the same restaurants or drink from the same water fountains. For others, it has meant having the right to vote. And, notwithstanding great strides in this country to provide equality for all, who actually comprises this “all” has never been formally defined in the law. Regardless of one’s political or social proclivities, providing “equal access for all” is a significant and ongoing political and social debate, with lawmakers and society at-large defining and redefining its meaning.
As new, uncharted issues involving civil liberties continue to penetrate society, they inevitably stretch beyond those directly affected to impact businesses, which cater to the general public. Today, equal access for transgender individuals, in particular, has taken the forefront of political and social debate. And, it has become an important issue for business owners to consider.
As a franchise owner, you may have relationships with customers, employees, and even contractors who are transgender, even if it is not immediately apparent to you. As such, it is important to ensure your business is a safe and comfortable environment, free from discrimination. What’s more, as a business owner, it is imperative you are knowledgeable and well-versed with regard to how these laws relate to your customers, employees, and others who visit your establishments.
In the area of equal access for transgender individuals, the so-called “bathrooms laws” have garnered substantial attention recently. These laws generally seek to regulate the use of public facilities – such as bathrooms, changing rooms, or locker rooms – by transgender individuals. While the federal government has weighed in on the debate, several states have passed, or attempted to pass, their own regulations relating to the use of public facilities. Amid the possible confusion from potentially contradictory regulations, it is essential you know what your local laws are, as well as how they mesh with federal laws.
For starters, the federal government has taken the position that schools must provide a “supportive” and “nondiscriminatory” environment for transgender students. While this is not a law, it offers guidance as to the federal government’s general position on matters relating to transgender individuals. Separately, individual states – like New York and North Carolina – have enacted “bathroom laws” to declare their state’s position on the issue. These particular state laws vary widely in scope and direction. For example, New York law requires single-stall public bathrooms to be gender neutral.
On the other hand, a subset of states want transgender individuals to use only the restroom that matches the gender information on their birth certificate. North Carolina has been successful in enacting such a law, while Wisconsin and South Dakota introduced similar bills only to see them fail in legislative chambers. Other states – including California, Colorado, Connecticut, Delaware, Hawaii, Illinois, Iowa, Maine, Massachusetts, Maryland, Minnesota, New Jersey, Nevada, New Mexico, Oregon, Rhode Island, Vermont, Washington, and the District of Colombia – have laws which protect persons based on gender identity, but do not specifically address the transgender bathroom issue.
So, what does all this mean for Dunkin’ franchisees? All business owners must comply with the law, which means knowing the law. It also means implementing procedures and policies to ensure compliance with the law towards the goal of creating the environment that is clean, safe and free from discrimination. There are various ways that your business can be impacted. For example, if you are in a state that expressly regulates bathroom use, you need to be aware of those regulations and comply with any obligations imposed on your business. This may mean something as simple as changing signage or making certain improvements to the premises.
You are also responsible to ensure your employees are properly trained on the issues and applicable laws as they relate to customers as well as to co-workers. To avoid liability, you must make certain none of your employees creates a hostile environment for any individual who is in your establishment. Interestingly, the National Labor Relations Board’s joint employer ruling means franchisors like Dunkin’ Brands can take a hands-off approach to employment issues like this, leaving you on your own to understand and comply with all laws which impact the daily operations of your franchise. As such, it is incumbent upon you to learn the issues, to appropriately train your staff, and to have the right team of professionals on call to help you steer clear of any problems.
The landscape regarding transgender equal access is changing every day. The United States Supreme Court has agreed to review a recent case on the issue even as legislators in different states continue to examine how to enforce laws pertaining to transgender equal access. The best advice is to be sure you know the issues—and how to comply with any laws that are enacted. •
Justin M. Klein is a franchise and business attorney with the firm of Marks & Klein, LLP. You can contact him at: firstname.lastname@example.org.