Complying with employment law has become increasingly difficult given that various states and municipalities have passed legislation that seemingly contradicts federal guidance.[1] One state law that has been in the spotlight is North Carolina’s House Bill 2, the “Public Facilities Privacy and Security Act” (“HB2”), which was passed in an emergency legislative session on March 23, 2016, to overturn a local ordinance that was set to extend anti-discrimination protections to lesbian, gay, bisexual, and transgender (“LGBT”) individuals and would have allowed transgender individuals to use the restroom facilities that corresponded with their gender identity.

There are a number of legal challenges to these laws. Notably, the Department of Justice (“DOJ”) has filed a complaint, in United States v. State of North Carolina et al., against the state of North Carolina, the University of North Carolina (the largest employer in the state), and the North Carolina Department of Public Safety (“DPS”), alleging that they are discriminating against transgender individuals in violation of federal law as a result of the state’s compliance with, and implementation of, HB2.

Separately, Lambda Legal, the American Civil Liberties Union, the American Civil Liberties Union of North Carolina, and Equality North Carolina have jointly filed a lawsuit against North Carolina’s governor (Carcano v. McCrory), challenging HB2 in a North Carolina federal court. The complaint, brought by a student, employee, and professor at three separate North Carolina state colleges, alleges that HB2 is unconstitutional because it violates the Equal Protection and Due Process clauses of the Fourteenth Amendment by discriminating on the basis of sex and sexual orientation and invading the privacy of transgender people. The complaint also alleges that the law violates Title IX by discriminating against students and school employees on the basis of sex. The Carcano complaint alleges that “[e]mployers subject to Title VII also will violate the U.S. Equal Employment Opportunity Commission’s [EEOC’s] decree that discriminating against transgender people with respect to restroom use is impermissible sex discrimination.”

Following the news of these two lawsuits, Governor McCrory issued an executive order affirming the right of private-sector employers to establish their own restroom and locker-room policies. While this executive order alleviates the tension between state and federal law for private employers, public employers and employers that have restroom facilities for customers still face differing standards under state and federal law.

Indeed, the EEOC has offered specific guidance (“EEOC Guidance”) on restroom facility access rights for transgender employees that is contrary to the laws of North Carolina and other jurisdictions. The EEOC Guidance specifically refers to two cases addressing discrimination on the basis of gender identity, both of which offer direction for employers:

  • In Macy v. Dep’t of Justice (Apr. 12, 2012), the EEOC ruled that discrimination based on transgender status is sex discrimination in violation of Title VII.
  • In Lusardi v. Dep’t of the Army (Mar. 27, 2015), the EEOC held that denying an employee equal access to a common restroom corresponding to the employee’s gender identity is discrimination on the basis of sex.

The EEOC Guidance states that an employer cannot condition the right to use the restroom corresponding with the employee’s gender identity on the employee undergoing or providing proof of surgery or any other medical procedure, and an employer cannot avoid the requirement to provide equal access to a common restroom by restricting a transgender employee to a single-user restroom instead.See EEOC Fact Sheet: Bathroom Access Rights for Transgender Employees Under Title VII of the Civil Rights Act of 1964. Notably, the fact sheet states that contrary state law is not a defense under Title VII (citing to 42 U.S.C. § 2000e-7).

In addition to those protections promulgated by the EEOC, OSHA also recently issued guidance indicating that restroom access is a health and safety matter. Under OSHA’s sanitation standard, 29 C.F.R. § 1910.141, employers are required to allow employees prompt access to sanitary facilities. This standard is “intended to protect employees from the health effects created when toilets are not available.”

The OSHA standards, which laws such as HB2 appear to directly conflict, hold that employees should not be required to use a segregated facility apart from other employees because of their gender identity or transgender status. OSHA guidance also has several “model practices” that “all employees should be permitted to use the facilities that correspond with their gender identity.” OSHA advises that the best policies also provide additional options, which employees may choose, but are not required, to use. These include the following:

  • Single-occupancy gender-neutral (unisex) facilities
  • Use of multiple-occupant, gender-neutral restroom facilities with lockable single occupant stalls

The District of Columbia Office of Human Rights issued guidance in early June addressing restroom usage for transgender and cisgender employees. Washington, DC, enacted a law requiring that all single-stall restrooms be gender neutral. Even though this option is available to all employees, the DC guidance reiterates the position of the EEOC and OSHA that employers may not direct transgender employees to use only single-stall restrooms.

What Hospitality Employers Should Do Now

  • Comply with federal law even though it may contradict some state and municipal laws and until there is resolution in either United States v. State of North Carolina et al. or Carcano v. McCrory.
  • Consider creating policies or practices regarding transgender employees’ use of restroom facilities (including following OSHA’s guidance providing numerous restroom options, such as single-occupancy gender-neutral (unisex) facilities), and the use of multiple-occupant, gender-neutral restroom facilities with lockable single occupant stalls.
  • Conduct training for human resources and line managers so that they are aware that they may not require transgender workers to use a particular restroom.

A version of this article originally appeared in the Take 5 newsletter “Five Key Issues Facing Employers in the Hospitality Industry.”