15363537786_06a646d19d_zPart II: Bathroom Access for Transgender Employees

On May 16, the Obama Administration issued formal guidance regarding bathroom access for transgender students. In a joint letter, the Departments of Justice and Education explained that educational programs receiving federal funding may not discriminate against students on the basis of their gender identity, including “transgender status.” As a result, schools “must allow transgender students access to [restroom and locker room] facilities consistent with their gender identity.”

While making less of a splash, the Administration has taken a similar position regarding employers’ obligation to provide bathroom access for transgender employees.

1.  The EEOC and Department of Labor Offer Guidance on Transgender Bathrooms in the Workplace

Title VII of the Civil Rights Act of 1964 prohibits an employer from discriminating against an individual “with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin.” As discussed in Part I of this series, the EEOC “interprets and enforces Title VII’s prohibition of sex discrimination as forbidding any employment discrimination based on gender identity or sexual orientation.”

On May 2, 2016, the EEOC issued its “Fact Sheet: Bathroom Access Rights for Transgender Employees Under Title VII of the Civil Rights Act of 1964.” In this Fact Sheet, the Commission cites its 2012 decision in Macy v. Dep’t of Justice for the proposition that “discrimination based on transgender status is sex discrimination in violation of Title VII . . . .” The Commission then cites its 2015 decision in Lusardi v. Dep’t of the Army for the following:

  • denying an employee equal access to a common restroom corresponding to the employee’s gender identity is sex discrimination;
  • an employer cannot condition this right on the employee undergoing or providing proof of surgery or any other medical procedure; and
  • an employer cannot avoid the requirement to provide equal access to a common restroom by restricting a transgender employee to a single-user restroom instead (though the employer can make a single-user restroom available to all employees who might choose to use it).

Finally, the Commission explains that “[c]ontrary state law is not a defense” and “[g]ender based stereotypes, perceptions, or comfort level must not interfere with the ability of any employee to work free from discrimination, including harassment.”

Likewise, the Occupational Health and Safety Administration (“OSHA) recently issued guidance on the subject. In its publication entitled “A Guide to Restroom Access for Transgender Workers,” OSHA writes:

Restricting employees to using only restrooms that are not consistent with their gender identity, or segregating them from other workers by requiring them to use gender-neutral or other specific restrooms, singles those employees out and may make them fear for their physical safety. Bathroom restrictions can result in employees avoiding using restrooms entirely while at work, which can lead to potentially serious physical injury or illness.

OSHA then outlines model policies for restroom access for transgender employees, explaining that “[t]he core belief underlying these policies is that all employees should be permitted to use the facilities that correspond with their gender identity.” Further, “[u]nder these best practices, employees are not asked to provide any medical or legal documentation of their gender identity in order to have access to gender-appropriate facilities.”

2.  The Takeaway

The EEOC and OSHA’s recent guidance regarding bathroom access for transgender employees – coupled with the EEOC identifying “coverage of lesbian, gay, bisexual and transgender individuals” as a “top enforcement priority” (discussed in Part I of this series) – should move this issue onto your risk-management radar.

Stay tuned for Part III of this series, which will offer employers practical advice for avoiding sexual-orientation and gender-identity related claims.


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Photo Credit: gruntzooki (modified) via Foter.com

The information contained on this blog is not legal advice, nor does this blog create an attorney-client relationship. Klein Bussell attorneys do not blog about pending matters handled on behalf of our clients and will never disclose client confidences.

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