If an employee comes to you and asks this question, how would you respond? The debate over bathrooms has been all over the media.
State regulations differ
Recently, North Carolina enacted the Public Facilities Privacy & Security Act requiring individuals to use the public restroom that corresponds with their biological sex – as designated on an individual’s birth certificate. As a result of this Act, there is now a legal battle between North Carolina and the U.S. Department of Justice.
And in the same week that the Department of Justice and North Carolina exchanged lawsuits over the bathroom law, President Obama made an impassioned argument for his administration’s decision to instruct public schools to allow transgender students use the bathroom that matches their gender identity. Shortly after this decision, officials from 11 U.S. states sued the Obama administration, accusing the federal government of overstepping its constitutional powers by taking actions that should be left to Congress or individual states.
Other states have also weighed in on this issue and on the rights of lesbian, gay, bisexual and transgender employees (currently there are at least 19 states and the District of Columbia that prohibit sexual orientation and gender identity discrimination and a number of cities and municipalities have passed such legislation).
Recently, California’s Assembly passed legislation requiring all single-stall bathrooms to be open to people of any gender (AB 1732). Commencing on March 1, 2017, all single-user toilet facilities in any business establishment, place of public accommodation, or government agency must be identified as all-gender toilet facilities, and designated for use by no more than one occupant at a time or for family or assisted use. The bill would authorize inspectors, building officials, or other local officials responsible for code enforcement to inspect for compliance with these provisions during any inspection. AB 1732 would align state law with similar restroom access laws emerging in the cities of Berkeley, Oakland, Denver, Boston, Philadelphia, and Seattle and pending legislation in New York and Vermont.
Federal agencies weigh in
The EEOC released a new fact sheet on transgender employee access to restrooms. The EEOC ruled that discrimination based on transgender status is sex discrimination in violation of Title VII. They state that:
- 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
- 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).
The Occupational Safety & Health Administration (OSHA) has also issued guidance on this topic. OSHA’s Sanitation standard requires that all employers under its jurisdiction provide employees with sanitary and available toilet facilities, so that employees will not suffer adverse health effects that can result if toilets are not available when employees need them.
On June 1, 2015, OSHA published a guide to restroom access to transgender workers. According to OSHA, employees should be able to use the facilities that correspond with their gender identity. OSHA best practice includes providing options, which employees may choose, but are not required, to use. These include:
- Single-occupancy gender-neutral (unisex) facilities
- Use of multiple-occupant, gender-neutral restroom facilities with lockable single occupant stalls
What’s an employer to do?
In many workplaces, separate restroom and other facilities are provided for men and women. Going back to the question “Which bathroom do I use?” Do your supervisory employees know how to respond to such a question? It is important for HR professionals to consider training individuals on how to handle such requests and concerns by other employees.
This may not be a question that is being asked at your workplace now, but it could be in the future as you bring on new employees, go through a merger or acquisition, or if a current employee, now comfortable with speaking up about their gender expression, comes to you for guidance on which bathroom to use.
It is important for supervisors to respond correctly, to avoid a claim of discrimination and/or retaliation. In FY 2015, the Equal Employment Opportunity Commission (EEOC) received a total of 1,412 charges that included allegations of sex discrimination related to sexual orientation and/or gender identity/transgender status. The EEOC resolved a total of 1,135 charges in FY 2015 providing approximately $3.3 million in monetary relief for workers and achieving changes in employer policies to prevent discrimination.
A safe response would be to tell the employee that s/he may use whichever bathroom s/he would like to use. Denying bathroom access or even telling the employee that s/he must use the bathroom that corresponds with their biological sex could be considered evidence of discrimination or harassment based on the individual’s gender identity, expression or transgender status. According to OSHA, the best practices allow an employee to use the restroom that corresponds with the person’s gender identity regardless of whether the individual has undergone any surgical treatment related to his/her gender or whether co-workers, customers or clients perceive the individual as a man or woman.
How about other employees? Are they prepared to see a colleague they know as a man, who identifies himself now as a woman, using the women’s restroom? This may then lead to the question should other employees be notified? That depends on a variety of factors. Generally, deciding if, when and how to notify employees about a co-worker’s gender identity or transition requires careful consideration of the dynamics and culture of the workplace and the personal preferences and privacy concerns of the individual. There is no one-size-fits-all approach.
With all this being said, it is important for companies to adopt policies to prevent gender discrimination. Policies supporting diversity in the workplace go hand-in-hand with creating equal employment opportunities.