Q. One of our employees complained that she is uncomfortable sharing the bathroom with an employee who is in transition. What are we required to do to provide a comfortable work environment for everyone?
Many employers are having discussions about equal employment opportunities for transgender employees and what steps are necessary to make the work environment comfortable for everyone.
Approximately 80% of transgender employees have reported experiencing some form of discrimination in the workplace. While there is no federal law that prohibits discrimination based on sexual orientation or gender identity, numerous courts have provided such protections based on Title VII’s prohibition against discrimination “because of sex.” In addition, 18 states and the District of Columbia, as well as multiple cities and counties across the country, have instituted laws expressly prohibiting transgender discrimination. The Department of Labor (DOL) also has jumped on this issue, updating its regulations to prohibit certain federal contractors from discriminating against employees on the basis of, among other things, gender identity and transgender status.
The issue of use of bathrooms in public schools also is in the forefront, as more than a dozen states have sued the federal government over its requirement that public schools allow transgender students to use restrooms conforming to their gender identity. One such case is now pending before the United States Supreme Court.
Given the state of the law, what kind of bathroom accommodations are employers required to provide for transgender employees?
The EEOC has brought several lawsuits on behalf of transgender employees, claiming that the denial of access to a restroom used by other employees of the same gender is sex discrimination under Title VII. The Occupational Safety and Health Administration published a guide that stated all employees, including transgender employees, should have access to restrooms that match their gender identity. For example, an employee who was born a male but is transitioning to a female and identifies as a female, should have access to a female restroom.
So, what to do if a non-transgender employee complains? At least one state appeals court has ruled that it is not the job of the transgender person to do the accommodating. Rather than requiring the transgender employee to use a bathroom for the gender that the individual does not identify with, employers need to offer an alternative to the complaining employee.
Employers have resolved this issue in a multitude of ways. Some employers have designated a unisex restroom with a single stall for use by all employees. Other employers with a limited workspace layout have installed flaps to cover the gap between bathroom stall doors and doorframes, and extended the stall doors from the ceiling to the floor in multiple-occupant restrooms. Also, some employers have installed locks on single-occupant stalls to create multiple-occupant, gender-neutral restrooms.
Whatever plan your company decides to put in place to provide comfortable restroom accommodations for all employees, keep this short list of “don’ts” in mind:
1. Employers are not allowed to ask employees to provide any medical or legal documentation of their gender identity for the purpose of providing access to restrooms.
2. No employee should be required to use a segregated restroom because of their transgender status.
3. Employers must make reasonable accommodations to provide a sanitary restroom that is a reasonable distance or travel time from the employee’s worksite, regardless of the employee’s transgender status.
– Tracey E. Diamond & LaVelle King