A small, independent restaurant hires a server who is in the process of transitioning from a man to a woman. The new employee chooses to use the ladies’ room—and an outraged female customer complains. What should the restaurant do?
While this is an unlikely scenario, it is certainly not impossible. In fact, people around the country have filed lawsuits in recent years over the issue of transgender restroom access. The court rulings have been all over the map and have offered little or no clarity.
Fortunately for restaurant owners, a federal agency recently issued some clarifying guidance on the restroom access question: In June, OSHA said in no uncertain terms that employees should have access to restrooms based on their gender identity. Employers’ and customers’ opinions on this policy don’t factor into the equation.
Many smaller, independent restaurants have single-occupancy restrooms that can be changed from “men’s” or “women’s” to a gender-neutral designation—a nice way to sidestep these thorny questions. Those that have larger, gender-specific bathrooms could consider transforming them into what OSHA describes as “multiple-occupant, gender-neutral restroom facilities with lockable single occupant stalls” (i.e., tear out the urinals and change the sign).
Nonetheless, just getting rid of gender-specific bathrooms might still be unacceptable to some. Take the transition of former Olympic athlete Bruce Jenner into Caitlyn Jenner. The mostly broad-minded media coverage of Jenner’s transformation shows how far American society has come on this issue. And yet Jenner’s story still sparked a backlash in some quarters. Likewise, the refusal of Kentucky clerk Kim Davis to process marriage licenses for gay couples highlights our society’s continuing divisions.
My take: The safest course is to comply with the federal government and be as accommodating as possible toward transgender individuals. The real legal risk here likely comes from highly motivated transgender employees who feel their rights have been violated—not from customers who don’t want them using the same restroom.
That doesn’t mean handling it this way will be easy. Let’s say the restaurant continues to maintain gender-specific restrooms. A restaurant manager with some kind of grudge could easily expose the restaurant to liability by “winging it” on the restroom access issue. The manager might tell transgender employees that they must bring in a physician’s note proving that they have had surgery before being allowed to use this or that restroom—a huge no-no, according to OSHA. Or the manager might insist that the transgender person use a private bathroom in the manager’s office. According to OSHA, singling out transgender employees in this way could embarrass them, prompt them to avoid using restrooms at work and eventually lead to urinary tract infections or bowel and bladder problems. That’s a lawsuit in the making.
A more serious scenario would be one in which your employees were openly hostile to their transgender colleagues. This could be relatively subtle: After someone begins presenting as transgender, a restaurant manager might insist on continuing to say “John” rather than “Jane” or “he” rather than “she.” Or it could be overt, as in the case of insults, jeers or mockery.
While the courts are all over the map with respect to transgender rights, the momentum is clearly toward their eventual recognition. A hostile work environment has long been understood as legitimate grounds for harassment and discrimination claims. Simply put, this type of thing represents a far-bigger risk than, say, being sued by a customer who doesn’t like that transgender people are using restrooms based on gender identity rather than their birth gender.
Make sure your restaurants and any supporting offices are open and accommodating toward transgender people. If you already have a restroom-access policy for transgender employees, work with legal experts to make sure it is in line with the newly published OSHA guidance. If your restaurant lacks such a policy, have your legal advisor use those guidelines to draft one. You should also make sure your employees are well educated on these issues. Sensitivity training is in order: Employees must understand the importance not only of complying with the letter of your policy, but also with adhering to its spirit of fairness.