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Employee restroom access: What employers should know
By Lauren Harris on February 24, 2017 at 3:22 PM

Male and female bathroom sign. With a new year and a new presidential administration, the restroom access debate is a hot topic again.

On Feb. 22, 2017, the Trump administration withdrew the Obama-era directive to public schools that instructed schools to permit transgender students access to restrooms and locker rooms that correspond with their expressed gender identity or risk violating Title IX’s prohibition on sex discrimination. The Trump administration clarified that its action in rescinding President Obama’s guidance was not an attack on the LGBTQ community, but an action taken on the premise that this is a state’s rights issue. Education Secretary Betsy DeVos explained in a statement: “We have a responsibility to protect every student in America and ensure that they have the freedom to learn and thrive in a safe and trusted environment…This is an issue best solved at the state and local level. Schools, communities, and families can find — and in many cases have found — solutions that protect all students.”

President Trump’s action comes at a time when LGBTQ restroom issues are an active topic. Earlier this month, the Trump administration reaffirmed its commitment to enforcing an Obama-era executive order protecting the rights of the LGBTQ employees employed by federal contractors. A DOL Fact Sheet interpreting the order explains, among other things, that federal contractors must allow employees and applicants to use restrooms consistent with their gender identity. In late March, the Supreme Court will hear arguments on Glouchester County School Bd. v. Grimm, a case that also addresses restroom access for transgender students.

Thus far, the Trump administration has not discussed the federal agency guidance issued over the past two years with respect to private employers. Provided below is a summary of the relevant guidance and some practical tips for approaching your own restroom access issues.

To start with the basics, the EEOC defines the word transgender as referring to people whose gender identity and/or expression is different from the sex assigned to them at birth. A person does not need to undergo any medical procedure to be considered transgender and need not provide any medical or legal documentation to establish gender identity.

In May 2016, the EEOC published its Fact Sheet: Bathroom Access Rights for Transgender Employees Under Title VII of the Civil Rights Act of 1964. For the past several years, the EEOC has been enforcing Title VII to include sex discrimination based on transgender status. With respect to restroom access, the agency explained in the EEOC appeal of Lusardi v. Department of the Army, 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; 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 (although the employer can make a single-user restroom available to all employees who may choose to use it).

While the EEOC’s Lusardi opinion is not necessarily binding on private employers, it is instructive of how the EEOC will approach restroom access issues. Importantly, the EEOC clarified that contrary state law is not a defense to Title VII claims of sex discrimination based on transgender status. The EEOC asserted that it is not expanding the identified protected classes under Title VII, but merely using Supreme Court and federal case law to support the agency’s interpretation.

Similarly, in 2015, OSHA published A Guide to Restroom Access for Transgender Workers, which explained that restroom access is a health and safety matter, reasoning that restricting employees’ access to a restroom that is not consistent with their gender identity or requiring individuals to use specific gender-neutral restrooms singles out transgender employees and “may make them fear for their physical safety” and cause injury or illness if the employee avoids the restroom. Under OSHA’s guidance, employees should determine which restroom is the most appropriate and safest option for them and should be permitted to use the restroom that corresponds with their gender identity.

Proponents of LGBTQ rights have been struggling to amend Title VII to include sexual orientation and gender identity as protected classes for the past 20 years, but it has yet to come to fruition. The Illinois Human Rights Act was amended in 2006 to prohibit discrimination in employment based on sexual orientation, which includes gender identity. To date, Missouri has not expanded the Missouri Human Rights Act to include sexual orientation or gender identity. However, several municipalities in Missouri, including St. Louis City, prohibit discrimination on the basis of sexual orientation. But restroom access is an entirely new arena and a touchier subject in practical application.

Employers that provide public accommodations should also be aware that while there is no federal law, many states and municipalities have laws prohibiting discrimination on the basis of sexual orientation and/or gender identity in public accommodations, which includes restroom access. However, many of the state and local agencies that enforce these laws are mum on their application to public restrooms. 

With so much uncertainty in the law, what should employers know?

Even though Title VII has not been formally amended, expect that the EEOC and courts will continue to treat transgender status as a basis for sex discrimination regarding employee restroom access. Here are five practical tips for handling the restroom access for transgender employees.

  1. Employers should not ask a transgender employee to use an individual unisex restroom, but should allow access to the restroom that corresponds with the employee’s gender identity. Employers can provide unisex restrooms for use by any employee who so chooses.
  2. Employers should not ask transgender employees for any documentation regarding their gender identity. Remember that changing government-issued documentation is often hard for transgender individuals and some individuals may not elect medical procedures.
  3. Do not be afraid to talk with transgender employees about the safest and most appropriate restroom options for their individual situations. Every situation will be different, and every person is going to present themselves differently. Be open to creative solutions that accommodate all employees.
  4. Recognize that some employees who are not transgender may feel uncomfortable. Be prepared to respond to employee inquiries about restroom use. This can be as simple as explaining that an uncomfortable employee can use an available unisex restroom or wait until the gender-specific restroom is vacant.
  5. Recognize that this is an ever-changing realm of the law and that employers should give thought to plans for future construction projects. Per OSHA’s guidance, the best practice is to provide single gender-neutral restrooms or multi-occupant gender-neutral restrooms with lockable single-occupancy stalls.

Regardless of the status of local, state and federal law, employers should approach these issues with an understanding of all employee feelings, safety and concerns. An expanded analysis of these issues can be found here. For more information regarding employee restroom access, contact the attorneys in our Employment & Labor Practice Group.

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