More and more employers are faced with the following question — can a transgender employee use the restroom associated with his or her gender identity? According to federal governmental agencies, the answer seems to be yes.
On June 1, 2015, OSHA issued its Guide to Restroom Access for Transgender Workers. In it, OSHA urges employers to allow “[a]ll employees, including transgender employees, [to] have access to restrooms that correspond to their gender identity” and identifies alternatives, including providing single-occupancy gender-neutral (unisex) facilities or multiple-occupant, gender-neutral facilities with lockable single-occupant stalls. OSHA also states that employers should not require employees to provide medical or legal documentation of their gender identity in order to have access to gender-appropriate facilities. Hunton & Williams labor and employment partner, Susan Wiltsie, who regularly advises clients on OSHA matters said, “If OSHA enforces this guidance, I anticipate arguments that the guidance is at odds with the language in 29 CFR 1910.141(c)(1)(i) requiring employers to provide ‘toilet rooms separate for each sex.’”
In April 2015, Executive Order 13672, signed by President Obama in July 2014, went into effect, requiring federal contractors to allow transgender employees access to restrooms that correspond with the employees’ gender identity. According to Christy Kiely, a Hunton & Williams lawyer who frequently defends DOL audits for clients, “The Department of Labor has been very aggressive about investigating its new initiatives, including on-site verification that equal access is provided to facilities and bathrooms.”
The same month that President Obama signed the Executive Order, the Equal Employment Opportunity Commission (“EEOC”), in Lusardi v. McHugh, ruled that intentional use of the wrong gender pronouns when referring to a transgender employee and denying the employee access to the restroom that corresponds to their gender identity, regardless of the fact that it might make other employees uncomfortable, constitutes sex discrimination in violation of Title VII. On June 5, 2015, the EEOC filed suit against a financial services company after the complainant, a man transitioning to a woman, alleged that her employer refused to let her use the women’s restroom and that colleagues subjected her to gender epithets and intentionally referred to her using the wrong gender pronouns. In its press release announcing the suit, the EEOC stated that the suit was part of its ongoing Strategic Enforcement Plan, which began in 2012, to make “coverage of lesbian, gay, bisexual, and transgender individuals under Title VII’s sex discrimination provisions . . . a top Commission enforcement priority.”
The EEOC’s Strategic Enforcement Plan and recent decisions, as well as OSHA’s guidance regarding transgender employees’ access to restrooms, coincides with unprecedented public awareness and debate over transgender rights in general. Many employers faced with the issue of restroom access for transgender employees have adopted polices allowing those employees to use restrooms that correspond to their gender identity, while others are weighing the costs and benefits of providing alternatives such as those mentioned in OSHA’s guidance. Regardless, it is clear that OSHA and the EEOC are increasing their focus on transgender issues, particularly with regard to restroom access.