It seems that
not a day goes by without the media reporting on a new “Bathroom Bill.” These
bills which have been proposed in a number of states, including Illinois,
South Dakota, Washington, and Missouri, aim to restrict the access of
transgender people to bathrooms and locker rooms.
Many of these bills focus on public facilities and,
frequently, the rights of students under Title IX of the Civil Rights Act of
1964. These bills while addressed to the public sector, raise important
questions for employers. Indeed, employers with increasing frequency are
navigating “the restroom question” in their workplaces.
To guide employers through this issue, both the
Federal government and certain states have issued guidance. Recently, the
California Department of Fair Employment and Housing released its own set of
bathroom-related guidelines. The guidelines also addressed a number of other
transgender employment related topics, which we wrote about here.
The DFEH guidelines provide that “all employees have a
right to safe and appropriate restroom facilities.” The guidelines go on to
instruct employers that transgender employees have 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. The guidelines underscore that there is
not a particular medical or legal event required for an employee to be
transgender, and that transgender employees should not be required to show
proof of medical or legal status changes in order to be accommodated
appropriately.
The DFEH notes that employers should also consider
offering a single-occupancy restroom option. Such a bathroom ensures employee
privacy. The DFEH guidelines further provide that if an employer provides a
single-occupancy bathroom, it must make clear that use of this restroom is
voluntary. Employees should not be required to use a single occupancy restroom.
A practical benefit of offering a single-occupancy restroom option is that it
provides an alternative restroom for employees who do not wish to share a
restroom with a transgender coworker.
The instructions provided by the DFEH align with the June 2015 Guidelines of the U.S.
Occupational Safety and Health Administration (OSHA). OSHA’s Guidelines provide
that transgender employees must be provided access to the restroom that matches
their gender identity. OSHA notes that refusal to provide such access can result
in health problems and potential liability. Like the DFEH, OSHA also
recommends providing a single-occupancy restroom, which employees can use who
are uncomfortable with using gendered restrooms.
This guidance of the DFEH and OSHA underscores that
Employers should increase their awareness of and sensitivity to issues related
to gender identity and expression in the workplace. Employers should also
continue to evaluate and update their internal policies, practices and
procedures with an eye towards these state and federal guidelines. Employers in
deciding what if any changes to make should also keep in mind the Equal
Employment Opportunity Commission’s recent interpretation of Title VII as
prohibiting discrimination based on gender identity.
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