In 2016 the Governor of North Carolina lit a fuse when he signed a law requiring individuals to use the restrooms consistent with their “biological sex”. Shortly after, the U.S. Department of Justice filed a lawsuit preventing North Carolina from enforcing this law – and the “bathroom issue” as we know it was born.
As an employer you are legally required to provide workers reasonable access to restroom facilities under the Occupational Safety and Health Administration (OSHA)’s rules. Seems pretty straightforward, right? In the last few years LGBTQ (lesbian, gay, bisexual, and transgender) issues have come to the forefront and many employers have been left wondering how to do what for who. To complicate matters even more, what happens when doing something to make one employee comfortable has the adverse result on another employee? Let’s take a look at what bathroom gender requirements are, and what experts recommend as best bathroom practices.
The Current Landscape of LGBTQ
As of the publishing of this article, no federal law specifically requires employers to use one approach when dealing with bathrooms and gender identity. The Department of Labor’s OSHA does provide a best practices guide, “A Guide to Restroom Access for Transgender Workers”. However, 19 jurisdictions and 200 municipalities have adopted laws prohibiting discrimination against transgender individuals in employment, housing, and public accommodations – The Human Rights Campaign website has a list of cities and counties. For example a state can require single use restrooms be labeled as gender neutral. Additionally, several court rulings have interpreted prohibitions on sex discrimination to prohibit employment discrimination based on gender identity or transgender status – including those contained in Title VII of the Civil Rights Act of 1964.
The following states have specifically outlined bathroom protections: California, Colorado, Connecticut, Delaware, Hawaii, Illinois, Iowa, Maine, Maryland, Massachusetts, Minnesota, Nevada, New Jersey, New Mexico, Oregon, Rhode Island, Vermont, Washington, Washington D.C.
Doing Your Best to Make EVERYONE Happy
There is no part of the office more personal than the restroom and employers need to be aware of how sensitive restroom issues can be. The most important thing to keep in mind is that you are trying to make EVERYONE feel safe and comfortable. All employees should be permitted to use the facilities that correspond with their gender identity, and that comes from OSHA (see the OSHA link above). While redesigning the layout of your office may be out of the question employers need to find solutions that are safe and respectful of transgender employees. Possible solutions are:
- single-occupancy gender-neutral (unisex) facilities
- multiple-occupant, gender-neutral restroom facilities with lockable single occupant stalls
- in multiple occupant, gender-segregated restrooms add privacy features such as flaps to cover gaps in stall doors or stall walls and doors that extend from floor to ceiling.
Things not to do:
- ask employees to provide any medical or legal documentation of their gender identity
- use a segregated facility apart from other employees because of their gender identity or transgender status
- deny an employee access to a common restroom corresponding to the employee’s gender identity.
- If your staff expresses discomfort with sharing facilities with transgender employees, remind them that everyone needs to use the restroom and reiterate that the policy is about ensuring access for all. If they still remain uncomfortable remind them of their option of possibly using a restroom on a different floor or in a different area or waiting for the transgender employee to exit before using the restroom.
As Always: Have a Policy!
The most surefire way to communicate your bathroom rules and help employees feel that their privacy needs are being considered is to have a clear, written and enforced policy. Here is a sample policy for you to consider.
Example Transgender Bathroom Policy
Restroom and locker room access issues need to be handled with respect and consideration. It is Company’s obligation to provide all employees, guests and customers adequate facility access.
Company policy is that employees, guests and customers should use the facilities that correspond with their gender identity. For example, a person who identifies as a man should use the men’s restroom, and a person who identifies as a woman should use the women’s restroom. All employees, guests and customers should determine the most appropriate and comfortable options for themselves.
Where possible, Company has provided additional facilities including:
- Single-occupancy, gender-neutral (unisex) facilities; and
- Use of multiple-occupant, gender-neutral restroom facilities with lockable single occupant stalls.
Note: any employee may choose to use these options, but no one, including a transgender person, is required to.
As with restrooms, all employees, guests and customers have the right to use the locker room appropriate to their gender identity. Company has taken steps to provide for additional privacy in its locker rooms for those employees who desire more privacy – not just a transgender employee – but any employee who values increased privacy.