Why it matters

With Caitlyn Jenner’s recent transition making headlines, transgender individuals have been in the news lately. For employers, transgender workers can present some tricky questions, as demonstrated by a recent lawsuit filed by the Equal Employment Opportunity Commission (EEOC) as well as guidance issued by the Occupational Safety and Health Administration (OSHA). OSHA published “Best Practices: A Guide to Restroom Access for Transgender Workers,” recommending that transgender employees select the restroom of their choice. “The core principle is that all employees, including transgender employees, should have access to restrooms that correspond to their gender identity,” OSHA advised. Only a handful of jurisdictions already have laws or regulations in place on the issue and those that do abide by this principle, the agency noted.

A few days later, the EEOC filed its third lawsuit on behalf of a transgender employee against Minnesota-based Deluxe Financial Services Corp. The company refused to let longtime employee Britney Austin use the women’s restroom after she began to present as a woman and informed her supervisors that she was transgender, the agency alleged. In addition, coworkers and supervisors used epithets and intentionally used the wrong gender pronouns, creating a hostile work environment, the EEOC alleged. Employers need to be cognizant of the rights of transgender employees, particularly as the EEOC has taken an aggressive stance, filing three lawsuits in recent months alleging discrimination by employers on the basis of sex against transgender employees.

Detailed discussion

With growing recognition of the number of transgender employees in the workplace, the Department of Labor’s (DOL) Occupational Safety and Health Administration (OSHA) released a new guide for employers, “Best Practices: A Guide to Restroom Access for Transgender Workers.”

The core principle: “All employees, including transgender employees, should have access to restrooms that correspond to their gender identity.”

An estimated 700,000 adults in the United States are transgender—meaning their internal gender identity is different from the sex they were assigned at birth, OSHA explained—and questions can arise in the workplace about which facilities they should use. Gender identity is “an intrinsic part of each person’s identity and everyday life,” and authorities on gender issues counsel that it is essential for employees to work in a manner consistent with how they live their daily lives.

“Restricting employees to using only restrooms that are not consistent with their gender identity, or segregating them from other workers by requiring them to use gender-neutral or other specific restrooms, singles those employees out and may make them fear for their physical safety,” according to the guidance. “Bathroom restrictions can result in employees avoiding using restrooms entirely while at work, which can lead to potentially serious physical injury or illness.”

Grounding its authority in OSHA’s sanitation standard, the agency said employers are required to provide their employees with toilet facilities and may not impose unreasonable restrictions on employee use of toilet facilities.

The model practice for transgender employee access is to permit employees to use the facilities that correspond with their gender identity, OSHA stressed. A person who identifies as a man should be permitted to use men’s restrooms, while a person who identifies as a woman should be permitted to use women’s restrooms—without being asked for medical or legal documentation of their gender identity in order to have access to gender-appropriate facilities.

“The best policies also provide additional options,” OSHA added, such as single-occupancy gender-neutral (unisex) facilities or use of multiple-occupant, gender-neutral restroom facilities with lockable single occupant stalls. “[N]o employee should be required to use a segregated facility apart from other employees because of their gender identity or transgender status,” the guidance stated.

OSHA highlighted federal, state, and local laws that address restroom access for transgender employees, with Colorado, Delaware, Iowa, Vermont, Washington, and Washington, D.C. all requiring employee access to a restroom consistent with their gender identity.

The guidance also noted a ruling from the Equal Employment Opportunity Commission (EEOC) in April, Lusardi v. McHugh, where the Commission concluded that a transgender employee cannot be denied access to the common restrooms used by other employees of the same gender identity, regardless of whether that employee has had any medical procedure or whether other employees may have negative reactions to allowing the employee to do so.

The EEOC’s ruling was followed by a new lawsuit filed in Minnesota federal court on behalf of a transgender employee the agency alleged was prohibited from using the bathroom consistent with her gender identity in violation of Title VII’s prohibition on sex discrimination.

Britney Austin began working at Deluxe Financial Services in 2007. Assigned the male sex at birth, Austin identified as female. When she applied for the job and for her first several years at Deluxe, Austin presented as male, using a traditionally male name.

In late 2010, Austin announced her intention to present as female at work to her supervisor and began to do so, beginning hormone therapy in January 2011. She informed her supervisors that she was legally changing her name to Britney Austin, provided documentation of her gender dysphoria diagnosis, and requested to use the women’s restroom. She also asked to have her sex designation changed in the internal personnel and communication systems such as phone directories and personal profiles.

The employer refused to change her sex designation until she completed the surgery portion of the gender change process and prohibited Austin from using the women’s restroom.

Even after Austin provided documentation of her legal name change, Deluxe refused to change her sex designation, instead asking her “invasive medical questions about her gender transition and related surgeries,” the EEOC said. Because the internal systems were not updated, outside vendors, customers, and colleagues continued to refer to Austin by her former male name.

In addition to continuing to deny Austin access to the women’s restroom—despite the fact she had continually presented as female since November 2010—and refusing to change her sex designation, Austin was subject to demeaning and derogatory treatment from coworkers and supervisors, the agency alleged.

Complaints about disparaging statements regarding her female appearance, repeated and intentional references to Austin with male pronouns, and making fun of her at staff training all went ignored by Deluxe, according to the EEOC’s complaint against the company.

For violations of Title VII’s prohibition on discrimination on the basis of sex and the hostile work environment endured by Austin, the EEOC requested compensatory and punitive damages as well as injunctive relief.

The lawsuit is the third filed by the agency on behalf of transgender employees alleging discrimination on the basis of sex. One of the cases settled in April when a Florida eye clinic agreed to pay $150,000 and provide a neutral letter of reference for a former employee who was subjected to poor treatment from coworkers and termination by the employer after transitioning from male to female.

To read the OSHA’s “Best Practices: A Guide to Restroom Access for Transgender Workers,” click here.

To read the complaint in EEOC v. Deluxe Financial Services Corp., click here.