Transgender Rights and Restroom Use: Key Dos and Don’ts for Employers

iStock_000072903125_SmallLately, the private issue of restroom use has become a very public matter. It has been almost a year since the Supreme Court legalized same-sex marriage, and since then, there has been a significant shift in LGBT (lesbian, gay, bisexual and transgender) rights both in society and the workplace.

While some states and cities have enacted strong measures to protect the rights of transgender individuals when it comes to restroom use, dress codes, pronouns etc., there has been a notable backlash. For instance, a controversial new North Carolina law limited restroom use to individuals of that biological sex. Facing a strong backlash, Governor Pat McCrory issued an executive order to allow state agencies to provide reasonable accommodations based on special circumstances and let private companies continue to establish their own rules for restrooms and locker rooms. The law also states that while local governments may establish antidiscrimination policies for their own employees, there is no statewide protection.

Along similar lines, Mississippi recently enacted the Protecting Freedom of Conscience from Government Discrimination Act which seeks to protect the sincerely-held religious beliefs of certain individuals and organizations, such as the belief that an individual’s sex is determined by anatomy and genetics at birth, and shield them from legal action.

Nonetheless, it remains critical for an employer to provide a safe workplace for transgender employees and combat discrimination and harassment. An employer should know how to handle sensitive issues such as restroom use and be prepared to address the needs of transgender individuals as well as their co-workers.

So, when it comes to the issue of restroom use, an employer should consider the following dos and don’ts:

Do Know the Law

While Title VII still does not explicitly consider sexual orientation and gender identity protected classes, the Equal Employment Opportunity Commission (EEOC) has taken a strong stand that discrimination based on gender identity or sexual harassment is unlawful sex discrimination. In fact, the EEOC has filed numerous lawsuits on behalf of LGBT employees claiming discrimination, harassment and denial of equal protections.

Specifically, the EEOC determined that it violates Title VII for an employer to deny an employee equal access to a common restroom corresponding to the employee’s gender identity. Further, employers should be aware of state and local protections in places such as California and New York City which consider gender identity a protected class and provide that all employees have the right to use the restroom corresponding to their gender identity regardless of their assigned sex at birth. These jurisdictions state that refusing to allow individuals to use facilities consistent with their gender identity constitutes discrimination.

Don’t Require Employees to Use the Restroom of His or Her Gender at Birth

The Occupational Safety and Health Administration (OSHA) has issued a guide to ensure that transgender employees are able to work in a manner that is consistent with how they live the rest of their daily lives. The guide notes that access should be provided to restrooms that are safe, sanitary, convenient and dignified. What’s more, an employee should not be compelled to use the restroom of his or her designated sex at birth, especially if the employee is in the process of transitioning from one gender to another or has chosen to live his or her life presenting in the other gender. The guide also says employees should not be required to provide any documentation of gender identity.

Employers should respect and recognize the right of individuals to self-identify regardless of surgery or documentation. Even if an individual does not look masculine enough or feminine enough to use a particular restroom and may not have undergone any particular medical procedure, such as sex-reassignment surgery, this should not be a factor.

Don’t Segregate Transgender Employees

A transgender employee should not be singled out to use a particular restroom. The EEOC has definitively stated that denying access to transgender employees, or segregating such employees, amounts to unlawful sex discrimination.

Do Institute Privacy Measures in Employee Restrooms

If an employer requires employees to use multiple-occupant restrooms, the employer may want to consider implementing increased privacy measures to make employees feel more comfortable and secure. This may include extending the stall doors from the floor to the ceiling and installing other physical measures to fully shield the stalls and toilets. An employer also may consider creating dividers between urinals to increase employee privacy.

Do Attempt To Provide Unisex Single Stall Bathrooms if Cost Allows

If feasible, an employer may wish to consider designating one or more single occupant gender-neutral restrooms to avoid this issue altogether. It also may make employees feel more comfortable and secure and ensure greater privacy for all. If an employer chooses to provide such a restroom, it should make sure that the signage is clear.

Do Develop Policies Prohibiting Discrimination and Harassment Against Transgender Employees

An employer should implement and enforce strong written policies prohibiting discrimination, harassment and retaliation against transgender employees. Although not required by federal law, a significant number of states and municipalities have such nondiscrimination laws in place. It is generally advisable as a best practice for an employer to prohibit this type of discrimination.

An employer should also establish a firm policy regarding restroom use and definitively state that a transitioning or transgender individual shall be permitted to use the restroom based on their current gender identity. The policy should state that co-workers with personal or religious concerns may request to use a separate facility as an accommodation. An employer should also be open to providing reasonable accommodations such as providing transitioning employees with temporary use of unisex facilities or a single-occupancy restroom.

Establishing clear guidelines will avoid confusion and make all employees feel more at ease. Finally, all supervisors should receive training and know how to respond to accommodation requests.

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