Although the issue is gaining more legal traction in recent months, there is no federal statute explicitly addressing employment discrimination based on sexual orientation or gender identity. However, the Equal Employment Opportunity Commission (EEOC) interprets Title VII of the Civil Rights Act of 1964 to cover discrimination against LGBT employees, as allegations of discrimination on the basis of sexual orientation necessarily state a claim of discrimination on the basis of sex. This interpretation in essence bars employment discrimination on the basis of sexual orientation in accordance with the Civil Rights Act of 1964. Employers are required to make every effort not to infringe upon these rights any way they can.
The media has been reporting on a so-called “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. Essentially, the purpose of those bills seeks to prevent the opposite sex from sharing a bathroom with the sex of which an LGTB member wants to be recognized. Many of these bills don’t only focus on the workplace; they also focus on public facilities and, frequently, the rights of students under Title IX of the Civil Rights Act of 1964.
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 can set the bar for other states to follow suit or at least have a starting point if it is time to draft their own legislation.
Given the legalities behind civil rights and administrative agency guidelines, 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.
Eventually, for employers and the public at large should consider offering a single-occupancy restroom option; moreover, offering a dual-sex single-member bathroom option takes it a step further to prevent discriminatory practice. Such a bathroom ensures employee privacy. Nevertheless, an employer must be clear in its assertions that a single-occupancy bathroom is used voluntarily – not by force or compulsion from an inquiry into one’s sexual identity. Employees should not be required to use a single occupancy restroom but having the option available is taking the right steps to comply with the law. 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.
Moreover, the U.S. Occupational Safety and Health Administration (OSHA) put forth guidelines indicating 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. These options make it clear to employees that those who are uncomfortable with using gendered restrooms do not have to feel dissimilar compared to similarly situated employees.
These new statutes and actions 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 state and federal guidelines. Employers in deciding what if any changes to make should also keep in mind the EEOC’s recent interpretation of Title VII as prohibiting discrimination based on gender identity – not as a protected class on its own, but qualifying as a legal claim under gender and sex discrimination laws.