If you have paid any attention to the news lately, you are familiar with the recent concerns regarding the use of public restrooms by the transgender community. In fact, there have been various laws passed in different states relating to this issue, often referred to as "bathroom bills." Most of these laws require that transgender individuals use the bathroom that corresponds with the gender indicated on their birth certificates, as opposed to those corresponding to their gender identity. However, many of those laws are currently being challenged. So, in the face of these issues, what are employers required to do?
Guidance for employers and employees
No doubt, both employers and employees are probably left wondering what to expect on this issue. What is an employer's duty with regard to employee restroom access and what are an employee's rights in that same regard. Whether you are transgender or not, this issue can have a huge impact either way. The EEOC and OSHA have both issued guidance that suggests discrimination based on gender identity is illegal, but what does that mean for public bathroom access issues?
EEOC's guidance on the issue of bathroom access
The EEOC’s “Fact Sheet on Bathroom Access Rights of Transgender Employees Under Title VII” provides the following three points of guidance:
1. Title VII, which applies to private employers with 15 or more employees, prohibits employment discrimination based on sex, and “sex” includes gender identity.
2. Title VII prohibits gender-based stereotyping.
3. Denying an employee equal access to a common bathroom corresponding to the employee’s gender identity is sex discrimination.
As the EEOC makes clear, Title VII governs workplace conduct and does not take into consideration personal beliefs. The EEOC clarifies: “These protections do not require any employee to change beliefs. Rather, they seek to ensure appropriate workplace treatment so that all employees may perform their jobs free from discrimination.”
OSHA's guidance on bathroom access
OSHA has also published its “Best Practices Guide to Restroom Access for Transgender Workers” to employers on the issue of providing bathroom access
to transgender employees. According to OSHA, employers must permit employees to use the facilities that correspond with their gender identity. However, OSHA does not require that employers provide options such as gender-neutral single-occupant restrooms or lockable single-occupant stalls. Nevertheless, OSHA makes it clear that, regardless of the layout in a particular workplace, “all employers need to find solutions that are safe and convenient and respect transgender employees.”
Ultimately, in order to maintain a workplace free of discrimination, your employer should consider the following:
- Employers cannot enforce a requirement that transgender employees provide proof of surgery or gender reassignment before allowing them to use the bathroom that corresponds with their gender identity or expression.
- If gender-specific restrooms with multiple stalls or urinals are available for non-transgender employees, employers cannot require transgender employees to only use a single-user bathroom
- Employers are allowed to offer single-user bathrooms for use by all employees, who can choose to use those single-user bathrooms
It is important to remember that your employer cannot use the beliefs, comfort level, or anxiety of other employees as a defense for discrimination.
If you feel you have been the victim of discrimination or retaliation, or if you have any questions regarding your employment rights, please contact Michel Allen & Sinor , either online or by calling us at (205) 265-1880.