Just as Caitlyn Jenner has brought renewed attention to the issue of gender identity, there have been several recent legal developments relating to restroom access for transgender employees of which employers should be aware.

First, the U.S. Department of Labor Occupational Safety and Health Administration (OSHA) recently released a guide regarding best practices for restroom access for transgender workers. The guide explains that OSHA’s sanitation standard requires that all employees, including transgender employees, must have access to sanitary restrooms. The guide further states that:

[A]ll employees should be permitted to use the facilities that correspond with their gender identity. For example, a person who identifies as a man should be permitted to use men’s restrooms, and a person who identifies as a woman should be permitted to use women’s restrooms. The employee should determine the most appropriate and safest option for him- or herself.

The guide further explains that the “best” employer restroom policies provide additional options, which employees may choose, but are not required to use. These options typically single-occupancy, gender-neutral facilities or multiple-occupant, gender-neutral facilities with lockable single occupant stalls.

Second, the EEOC decided a case in April of 2015 in which it held that an employer violated Title VII’s prohibition against sex discrimination by prohibiting a transgender employee from using the restroom that corresponded to her gender identity. The EEOC has interpreted Title VII to prohibit discrimination against transgender individuals since at least 2012.

In Lusardi v. McHugh, the employee worked for the U.S. Army and transitioned from male to female in 2010. (April 1, 2015). Following her transition, the employer restricted the employee from using the women’s restroom and required her to use a single-user restroom. The employee’s supervisor also continued to refer to her by male pronouns.

The EEOC held in Lusardi that even though other employees may be afraid or embarrassed to share a restroom with a transgender employee, “supervisory or co-worker confusion or anxiety cannot justify discriminatory terms and conditions of employment.” The EEOC further explained that “[a]llowing the preferences of co-workers to determine whether sex discrimination is valid reinforces the very stereotypes and prejudices that Title VII is intended to overcome.” The EEOC concluded that the Army’s restriction of the employee from the female restroom constituted discrimination on the basis of sex in violation of Title VII.

The EEOC’s Lusardi decision and the recent guidance from OSHA represents somewhat of a change in the law regarding transgender access to restrooms. For example, fourteen years ago, the Minnesota Supreme Court decided a case in which it held that the Minnesota Human Rights Act (MHRA) neither requires nor prohibits restroom designation according to self-image of gender or according to biological gender. Goins v. West Group, 635 N.W.2d 717 (Minn. 2001). Although this remains good case law for purposes of the MHRA, the Lusardi case and the recent OSHA guidance show that this reasoning is arguably inconsistent with the requirements of federal law.

Takeaway: Restroom access for transgender employees is one area in which the law appears to be in transition. Employers should continue to monitor developments regarding this subject, such as the recent OSHA guidance and the EEOC’s Lusardi case, to ensure they are in compliance with the most recent legal guidance.