Hunton Retail Law Resource

This post has been updated. 

In the midst of the press and politics currently surrounding the issue of bathroom policies and laws with respect to transgender employees, it is helpful to remember that government organizations have been issuing guidance to employers to assist them in dealing with these issues, especially in places where gender identity and expression constitute protected characteristics under anti-discrimination laws.

For example, the United States Equal Employment Opportunity Commission (“EEOC”) issued its Fact Sheet: Bathroom Access Rights for Transgender Employees Under Title VII of the Civil Rights Act of 1964 on May 2, 2016, reminding employers that gender identity is a protected characteristic under Title VII and that contrary state law does not constitute a defense under that act. Therefore, precluding an employee from accessing a restroom that corresponds to the employee’s gender identity constitutes sex discrimination under the act and employers cannot circumvent the law by conditioning rights on proof that the transgender employee has undergone a type of medical procedure or restricting the transgender employee to a single occupant stall. The EEOC states “[g]ender-based stereotypes, perceptions, or comfort level must not interfere with the ability of any employee to work free from discrimination, including harassment...‘Title VII prohibits discrimination based on sex whether motivated by hostility, by a desire to protect people of a certain gender, by gender stereotypes, or by the desire to accommodate other people’s prejudices or discomfort.’”

The Occupational Safety and Health Administration (“OSHA”) issued its Best Practices: A Guide to Restroom Access for Transgender Workers in June of last year. In the guidance, OSHA reminds employers under its jurisdiction that its Sanitation Standard requires they “provide employees with sanitary and available toilet facilities, so that employees will not suffer the adverse health effects that can result if toilets are not available when employees need them.” This Sanitation Standard has been interpreted to mean that employers permit “prompt access to sanitary facilities” and that “employers may not impose unreasonable restrictions” on employee bathroom use. Per OSHA, best practices for ensuring everyone has access to the appropriate facilities for compliance with the Standard include allowing employees to use the bathroom that corresponds with their gender identity and providing options such as the use of a unisex single occupancy stall and the use of multiple-occupant unisex restrooms with single occupant stalls that lock. Moreover, best practices also dictate that “employees are not asked to provide any medical or legal documentation of their gender identity in order to have access to gender-appropriate facilities” and that “no employee should be required to use a segregated facility apart from other employees because of their gender identity or transgender status.”

California’s Department of Fair Employment and Housing (“DFEH”) issued its publication, Transgender Rights in the Workplace, in February 2016 and specifically included a reminder to California employers that under California’s Fair Employment and Housing Act, the “right to safe and appropriate restroom and locker facilities...includes the right to use a restroom or locker room that corresponds to the employee’s gender identity, regardless of the employee’s assigned sex at birth.” Like OSHA, the DFEH recommends employers make accessible a unisex single stall bathroom for any employee to choose to use, regardless of reason, and that no employee should be forced to use that stall as opposed to any other available bathroom facilities. Likewise, in December 2015, New York City included direction with respect to bathrooms and its Human Rights Law in its Legal Enforcement Guidance on the Basis of Gender Identity or Expression. The guidance states that “individuals be permitted to use single-sex facilities, such as bathrooms or locker rooms, and participate in single-sex programs, consistent with their gender, regardless of their sex assigned at birth, anatomy, medical history, appearance, or the sex indicated on their identification.” The guidance then goes on to make clear that the objection of a customer or employee to sharing a bathroom with a transgender person is not a lawful reason to deny a transgender or gender non-conforming person access to that facility. The guidance also makes clear that barring a transgender or gender non-conforming person from a program or facility based on the concern that the person will make others uncomfortable constitutes a violation of the New York law. Other states, such as Colorado, Iowa, Vermont and Washington have also issued similar guidance.

Employers should review their practices and policies with respect to restrooms and other gender specific facilities to ensure they are in compliance with the law, including anti-discrimination laws (whether local, state or federal), where they operate, especially if gender identity or expression constitute protected characteristics in the jurisdiction.

Update: On June 6, 2016, the District of Columbia Office of Human Rights and the National LGBTQ Task Force published a resource guide titled, Valuing Transgender Applicants & Employees, which provides guidance for employers regarding gender-segregated facilities in addition to other employment issues.