The calls from employers come into our office several times a week seeking legal advice about the use of bathrooms by transgender employees. It’s an issue that federal regulatory agencies and the U.S. Supreme Court are racing to address as transgender employees assert their rights. My advice to clients who own businesses may not be the easiest solution to enforce, but I believe it’s where the emerging laws on this topic will eventually settle.
I tell my clients to provide their transgender employees with the choice of using the bathroom or locker room facilities designated for the gender with which the employee identifies. This advice invariably leads employers to ask me to advise them about how to address concerns voiced by their other workers.
Some employees might feel that their rights are being ignored when employers accede to the rights of transgender workers. A review of the current law might be useful to explain the foundation for the advice I offered.
Federal Law and Bathroom Access Rights for Transgender Employees
Discrimination on the basis of sexual orientation is a violation of the federal Civil Rights Act. Title VII makes it unlawful for an employer to discriminate against a worker on the basis of gender. The question still remains — if an employer does not discriminate against women or men as a class, but discriminates against transgender employees (irrespective of whether they are transgender men or transgender women), does that employer violate Title VII? The U.S. Supreme Court has not yet ruled on this issue, but may come close when it rules on the issues surrounding high school locker rooms.
EEOC: Gender Identity Discrimination is Sex Discrimination
The Equal Employment Opportunity Commission (EEOC) has held that discrimination against a transgender individual because of that person’s gender identity is discrimination based on sex and, therefore, violates Title VII. It has also expressly held that an employer’s restrictions on a transgender woman’s ability to use a common female restroom violates Title VII.
OSHA Guidance on Transgender Restroom Access
The U.S. Occupational Safety and Health Administration (OSHA) supports the EEOC interpretation of the law with its own set of guidelines for restroom access by transgender employees. In OSHA’s publication “Best Practices: A Guide to Restroom Access for Transgender Workers” it recommends that employees should be allowed to use facilities corresponding to the gender with which they identify. Alternative restroom policies suggested by OSHA include gender-neutral facilities that either allow only one occupant at a time or allow multiple occupants and are equipped with lockable stalls.
State Law Protecting Transgender Employees
State laws can and oftentimes do expand federal protections. Many states have specific laws in the Human Rights Acts expressly protecting the rights of transgender employees. Illinois, along with 20 other states, the District of Columbia, Guam, and Puerto Rico have statutes that protect against gender identity discrimination in employment in both the public and private sectors, including: California, Colorado, Connecticut, Delaware, Hawaii, Illinois, Iowa, Maine, Maryland, Massachusetts, Minnesota, Nevada, New Jersey, New Mexico, New York, Oregon, Rhode Island, Utah, Vermont, and Washington. Eight states have and laws prohibiting discrimination in public employment based on both sexual orientation and gender identity: Indiana, Kentucky, Louisiana, Michigan, Montana, North Carolina, Pennsylvania and Virginia.
Best Practice for Employers
The best practice is to provide options for all employees. If space allows, provide single-occupancy gender-neutral facilities or provide multiple-occupant or gender-neutral restroom facilities with lockable single occupant stalls. But if only discrete all male and all female facilities exist, allow transgender employees the choice of using the restroom that corresponds with their transgender identity. And, of course, before the issues arise, be sure to have a written employment policy distributed to every worker providing the employer will not discriminate on the basis of gender, sexual orientation or gender identification.
Please contact Kristin Tauras at McKenna Storer with questions about this topic and other Employment Law matters.