June 2016
Restroom Access for Employees - EEOC and OSHA Guidance 

Last month, the U.S. Department of Justice (DOJ) and the U.S. Department of Education (DOE) issued joint guidance stating schools that receive federal funds may not discriminate against students, including with respect to restroom access, based on gender identity -- defined by the DOJ/DOE guidance as an individual's internal sense of gender, which may or may not be consistent with the sex designation recorded on the individual's birth certificate. Following the release of the DOJ/DOE guidance, the issue of restroom access for transgender students received significant media attention -- particularly in Oklahoma, after an ultimately unsuccessful countermeasure bill (SB 1619, known as the "Bathroom Bill") was introduced in the state's legislature.

Another federal agency, the Equal Employment Opportunity Commission (EEOC), also issued guidance last month regarding restroom access -- not in schools, but in the workplace -- but the EEOC's guidance received far less press. The EEOC's guidance, which is in the form of a "Fact Sheet" titled "Bathroom Access Rights for Transgender Employees Under Title VII of the Civil Rights Act of 1964," reiterates what has been the agency's position for some time now: that discrimination on the basis of transgender status violates Title VII, the federal statute that prohibits discrimination on the basis of sex, among other protected characteristics. Citing one of the EEOC's own enforcement decisions, Lusardi v. Dep't of the Army, EEOC Appeal No. 0120133395 (Mar. 27, 2015), the fact sheet makes clear the EEOC's position that denying a transgender employee equal access to a common (i.e., multi-user) restroom that corresponds to the employee's gender identity violates Title VII, and that an employer cannot require a transgender employee to use a single-user restroom in lieu of allowing the employee access to a common (multi-user) restroom that corresponds to the employee's gender identity. The fact sheet also makes clear the EEOC's position that an employer cannot require an employee to provide proof that the employee has undergone surgery or any other medical procedure as a condition of restroom access.

The EEOC's fact sheet also references guidance regarding restroom access for transgender employees released by the Occupational Safety and Health Administration (OSHA) last year. The OSHA guidance sets forth recommended "best practices" for employers, which are clearly understood to be OSHA's own enforcement position on these issues. OSHA's suggested best practices mirror the EEOC's guidance, and include the following:
  • Where an employer provides separate restroom facilities for men and women (as many employers do), employees should be permitted to use the restroom facilities that correspond with their gender identity.
  • Employers should consider providing additional restroom options in addition to (or perhaps instead of) traditional male and female restrooms, such as single-occupancy restrooms that can be used by anyone, and multiple-occupant, gender-neutral restrooms that have lockable single-occupant stalls.
  • Employees should be allowed to choose the most appropriate and safest restroom option for themselves, without regard to whether the employee can provide medical or legal documentation of their gender identity.
  • Further, under OSHA standards, no employee may be limited to using restroom facilities that are an unreasonable distance or travel time from the employee's worksite. Employees should never be required to use separate restroom facilities apart from other employees, or to use a particular type of restroom offered by the employer, because of their gender identity or transgender status. Transgender employees cannot be required to use only single-occupant, unisex restrooms where other options are also available.

Both OSHA and the EEOC have made clear that employers need to find restroom solutions that respect transgender employees' rights to use the restroom of their choosing regardless of the physical layout of the worksite, and regardless of any discomfort that such restroom access may cause for other employees in the workplace. While other employees are not required to change their beliefs to accommodate transgender co-workers, the agencies have made clear that transgender employees' rights to restroom access consistent with their gender identity is necessary to enable transgender employees to perform their jobs free from discrimination on the basis of their sex/gender identity -- and they will seek to hold employers who fail to provide non-discriminatory restroom access to transgender employees accountable under the law.

State laws are highly relevant in this arena as well. Currently, Oklahoma has no laws regarding restroom access for transgender employees in the workplace, so compliance with federal law should be the goal of employers covered by the applicable federal laws.

If you have questions about issues related to restroom access in the workplace, or any other issue regarding transgender employees' rights in the workplace, please do not hesitate to contact your Hall Estill attorney.

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