Employers may have questions on a common workplace issue involving transgender workers — which restroom to use. The basic guideline is that employees should be permitted to use the restroom that corresponds with their gender identity, as recent developments illustrate.
The DFEH has provided guidance regarding the obligations of employers when it comes to bathrooms, showers and locker rooms:
- All employees have the right to use a restroom or locker room that corresponds to the employee’s gender identity, regardless of the employee’s assigned sex at birth.
- Employers, where possible, should create single-user or unisex restroom facilities, but should not force a transgender employee to exclusively use that facility. This unisex or single-stall bathroom can be used by any employee desiring increased privacy, regardless of the underlying reason.
The use of a unisex single stall restroom should always be a matter of choice.
Co-worker concerns around sharing facilities can typically be managed through education. Employers should keep in mind that co-worker or supervisor discomfort can never justify discriminatory terms and conditions of employment.
Recent federal and state rulings also provide useful guidance to employers.
The DFEH sued on behalf of a transgender individual who sought employment. The company allegedly made an offer of employment on the condition that the applicant use the women’s restroom and locker room pending completion of female to male sex reassignment surgery. The applicant declined the employment offer. The superior court, in a case of first impression, refused to dismiss the case, commenting that the FEHA prohibits employers from requiring transgender workers to use restrooms and locker rooms based on their sex at birth.
In February 2016, the case was settled. As part of the settlement, the company agreed to adopt new policies to allow employees access to the facilities that correspond with their gender identity. The company also agreed to train all of its California employees.
In 2015, the EEOC ruled in Lusardi v. McHugh that the Army discriminated against a transgender woman when it, among other things, required her to use the single-user restroom and would not allow her to use the restroom consistent with her gender identity. The EEOC has taken a consistent position under Title VII on restroom access for transgender workers.
In Lusardi, the EEOC emphasized that forcing a transgender employee to use only the unisex facility could segregate the employee and perpetuate a sense that the employee is not worthy of equal treatment and respect.
For additional guidance on how to address this workplace topic, employers can refer to OSHA’s
A Guide to Restroom Access for Transgender Workers, which the agency developed in alliance with the National Center for Transgender Equality.
Employers with any questions relating to restroom usage will want to seek legal advice.
Preventing Gender Identity and Gender Expression Discrimination
Employers may want to keep these issues in mind:
- Allow employees to dress and present themselves according to their gender identity.
- Use the name and gender pronoun that corresponds with an employee’s gender identity, both in employee records and in communications with and about the employee. In the EEOC’s Lusardi v. McHugh ruling, the agency made clear that refusing to use the correct pronouns could contribute to an unlawful hostile work environment based on sex.
- To prevent misconceptions and stereotypes from escalating into discrimination or harassment, incorporate sensitivity to gender identity and gender expression issues into EEO and anti-harassment training programs. Also consider providing training, as needed, when a transgender employee announces that he/she is transitioning to support the employee, manage the workplace transition process and encourage sensitivity from co-workers.
- Respect privacy and confidentiality. Make sure you have an employee’s permission before disclosing to anyone that the employee is transgender. Avoid asking excessively personal questions that would be considered inappropriate if asked of non-transgender workers. And, be scrupulous about protecting the confidentiality of any medical information the employee may provide to you to enable you to better accommodate his/her needs.
- Examine your equal employment opportunity policies to ensure that gender identity and gender expression are included as protected categories, as required by California law.
- Follow best practices related to employee use of restroom facilities.