Transgender Employee Restroom Access – Are You Compliant? - American Society of Employers - Anthony Kaylin

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Transgender Employee Restroom Access – Are You Compliant?

Last month, the Supreme Court declined to take up the issue of whether the nation's schools must allow students to use the bathroom that matches their gender identities.  In that case, a 4th Circuit Court of Appeals decision, the court ruled in favor of Gavin Grimm, a transgender man who sued his Virginia high school for barring him from using the boys’ restroom.  Grimm stated that “[b]eing forced to use the nurse’s room, a private bathroom, and the girl’s room was humiliating for me, and having to go to out-of-the-way bathrooms severely interfered with my education.  Trans youth deserve to use the bathroom in peace without being humiliated and stigmatized by their own school boards and elected officials.”

According to the EEOC, the term “transgender” refers to persons whose gender identity and/or expression is different from the sex assigned to them at birth (e.g., the sex listed on an original birth certificate). The term transgender woman typically is used to refer to someone who was assigned the male sex at birth but who identifies as a female. Likewise, the term transgender man typically is used to refer to someone who was assigned the female sex at birth but who identifies as male. A person does not need to undergo any medical procedure to be considered a transgender man or a transgender woman.

So how does a Title IX case, a law that is directed toward educational institutions, impact employers?   Title IX case law tends to mirror Title VII case law, the law that directly regulates employers.   Although the Bostock case last year did not take up the various issues associated with LGBTQ and gender identity and sexual orientation, such as bathrooms and the issue of religious belief versus Title VII protections, these cases are coming at some point.  Employers need to be prepared.

Given the intermixing of politics and religious beliefs today and the lack of Supreme Court guidance, employers will be subject to the whims of whoever is in office until the courts have ruled otherwise.  For example, Tennessee just passed a law that requires businesses and government facilities open to the public, to post a sign if they allow transgender use of multi-person bathrooms, locker rooms, or changing rooms associated with their gender identity. The law became effective July 1.  The law requires that the following sign be posted wherever transgenders are not prevented from using the multi-person bathrooms, locker rooms, or changing rooms of their choice: “This facility maintains a policy of allowing the use of restrooms by either biological sex, regardless of the designation on the restroom.”  It is a class B misdemeanor to those who won’t post the signs within 30 days of being warned they’re breaking the law. 

However, per the EEOC, contrary state or local law is not a defense under Title VII.  Therefore, employers who treat transgender differently in regard to access to the bathrooms under the Tennessee law or any other law, will not have a safe harbor for their actions and will still have liability under Title VII.    The EEOC states specifically on their new landing page on gender identity and sexual orientation that “[c]ourts have long recognized that employers may have separate bathrooms, locker rooms, and showers for men and women, or may choose to have unisex or single-use bathrooms, locker rooms, and showers. The Commission has taken the position that employers may not deny an employee equal access to a bathroom, locker room, or shower that corresponds to the employee’s gender identity. In other words, if an employer has separate bathrooms, locker rooms, or showers for men and women, all men (including transgender men) should be allowed to use the men’s facilities and all women (including transgender women) should be allowed to use the women’s facilities.”

During the Obama administration, OSHA published “A Guide to access for Transgender Workers,” which may be updated sometime in the future.  OSHA states that the core belief underlying equal access to restrooms is that all employees should be permitted to use the facilities that correspond to their gender identity. OSHA then stated that the best policies also provide additional options, which employees may choose, but are not required, to use. These include single-occupancy gender-neutral (unisex) facilities and use of multiple-occupant, gender-neutral restroom facilities with lockable single occupant stalls.  OSHA then cautions employers that regardless of the physical layout of a worksite, they need to find solutions that are safe, convenient, and respect transgender employees.

Employees may express discomfort or more with equal access to restrooms.  Others may treat the situation absurdly causing more issues in the workplace.  And others will cite religious beliefs as overriding equal access rights.  HR needs to get ahead of this issue.  Therefore, HR should work with their legal counsel on the bathroom access issue and company policy given that local and state laws will be popping up as hurdles for compliance with current case law and OSHA and EEOC requirements.  Finally, all employees need to be trained and given an opportunity to be listened to in order to alleviate any opposition to compliance.

 

Source: NBC News 6/28/21

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