By Sam Schwartz-Fenwick and Kylie Byron
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.